United States District Court, S. Mississippi, Hudson Specialty Insurance Company Division. Editors Note Applicable Law: 28 U. Alexander, Counter Claimants, represented by Mark J. Alexander, Counter Defendants, represented by Mark J. The Court having examined the motions, memoranda in support, and the applicable statutory and case law, and being fully advised in the premises, finds that the Quest Towing Company to Strike Expert Causation Opinions should be DENIED.

Alexander and the Sepcialty of McComb. Talex owns the JPAC Building and, at the time of the incident, Jubilee operated a performing arts school out of the building. Alexander is the principal for both Talex and Jubilee.

Talex is the named insured under one policy, No. HBD, the "Talex Policy"which provides building Insurancd coverage and commercial general liability coverage. HBD, the "Alexander Policy"which provides personal property coverage Company Pension commercial general liability coverage. After the collapse, the remaining portions of the JPAC Building required immediate stabilization to render them safe.

McComb declared an emergency condition and hired Mr. Laird as a non-retained expert for this trial. Laird's report claimed that the collapse nIsurance caused by the fact that the JPAC Building "had been reroofed many times without removal of the degraded underlying roofing materials; thus adding additional weight to the roof Insutance. McComb also designated Steve Cox as a non-retained expert.

In the initial disclosure, Mr. Cox opined that the building collapsed because of the condition of very old mortar and not because of water standing on Magnitude Company Bangalore building roof or because of roof repair.

The Court will address each in turn. The Assignment also stated that the claims of McComb would be made solely under the commercial general liability coverage of the insurance policies issued by Hudson. In this contract, the parties agreed that Sepcialty large amount of rainwater had collected on Hudsom JPAC roof and the weight of the rainfall was the proximate cause of the collapse. See Doc. Hudson claims that the statement in The Assignment qualifies as a judicial admission, removing the question of causation from contention.

A judicial admission is binding upon the party making it. To qualify as a judicial admission a statement must be 1 made in a judicial proceeding; 2 contrary to a fact essential to the theory of recovery; 3 deliberate, clear, and unequivocal; 4 such that giving it conclusive effect meets with public policy; and 5 about a fact on which a judgment for the opposing party can be based. Redcom Labs. The effect of a judicial admission is to withdraw a fact from contention.

See Martinez v. Bally's Louisiana, Inc. Examples of judicial admissions are "admissions in the pleadings in the case, in motions for summary judgment, admissions in open court, stipulations of fact, and Hudwon pursuant to requests to Hudwon. A judicial admission is a "formal concession in the pleadings or stipulations by a party or counsel that is binding on the party making them.

A judicial admission should not Cojpany confused with an evidentiary admission, which may be "controverted or explained by the party. The first requirement of a judicial admission is that it Specialtj made in a judicial proceeding.

The contract at issue was not made in a pleading, Hudson Specialty Insurance Company, deposition, testimony, response to Insurajce for admissions, or in counsel's statements to the court. As such, the terms of the contract are not judicial admissions, but are evidentiary admissions that can be controverted or explained by the parties. In addition to not having been made during a judicial proceeding, The Assignment also fails to be a "deliberate, clear, and unequivocal" admission.

When a party amends a pleading, any statements in the earlier proceeding that were judicial admissions become evidentiary admissions if the pleadings are contradictory, i. See LLC v. Trinity Industries, Inc. The party opponent may offer the earlier version of the pleadings as evidence, but the statement can no longer be considered a judicial Cojpany.

See id. The reasons that support converting judicial admissions into evidentiary admissions upon amending a complaint also apply when Comany The Inssurance. It goes against public policy to bind a party to its original perception of the case before the party goes through discovery.

Therefore, courts approach this issue with flexibility so that judicial admissions made in pleadings can be overridden by merely amending the pleading. As such, this court will approach The Assignment with the same flexibility. Therefore, the statement regarding causation in The Assignment is not a judicial admission that takes the Compahy of causation out of contention, but is an evidentiary admission that can be controverted or explained.

As the Assignment is not a judicial admission, the Court must evaluate the expert opinions on their own merit. Hudson asserts that neither Cox nor Laird's expert causation opinions can withstand Daubert scrutiny from either Mathews Company Crystal Lake relevance or reliability standpoint. See e. Merrell Dow Pharmaceuticals, Inc.

Hudson argues that there is Specialtty "obvious relevance to expert causation Specjalty, much Hudson Specialty Insurance Company presentations which contradict such foundational allegations and binding judicial admissions. The Hudsom causation opinions are relevant to the issues at hand.

The standard for relevancy is generally a "low bar," Insurnace Daubert. See Camowraps, LLC v. Here, the causation of the collapse is relevant because the Subject Policies trigger coverage if loss is caused by "building decay hidden from view and the use of defective materials or methods in construction or renovation. In its Reply, Hudson next argues that the opinions cannot be relevant because the expert opinions do not put forth a "Covered Cause of Loss.

Hudson argues that Laird testified that the weight of built up roofing materials was the cause of the collapse, but that he did not testify that the past re-roofing was "defective. Cox nor Hudsonn. Laird testified that the mortar Co,pany which allegedly caused the JPAC building's collapse was not plainly visible. As Companu, the testimony cannot Insrance relevant because the building decay must be "hidden from view" to trigger the Subject Policies. This court does not agree with Hudson's claim that this makes the testimony irrelevant so as to require striking expert testimony.

The Daubert analysis should be restrained to the process of reaching the expert's conclusions, not the merits of the conclusions themselves. The merits should be addressed through "vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof. Stanley Access Technologies, Inc.

Here, the determination on whether the Policies are triggered will be based of the merits of the conclusions and should be addressed through cross-examination. The Court's role as gatekeeper should Sppecialty supplant a trial on the merits. See Pipitone v. Biomatric, Inc. Hudson next argues that the opinions are unreliable because they fail to exclude the weight of rainwater collection as a "causative factor in the roof collapse.

The rainwater, the mortar deterioration, and the roofing material accumulation could all have contributed to the collapse of the roof. Speciaty, even if there is a single proximate cause of the collapse, there is no requirement that an expert eliminate every alternative cause.

American Ins. WTM, Inc. It should be noted that Hudson does not raise any concerns regarding the procedure or methodology used or the qualifications of either expert. On September 25,the Court entered a Case Management Order [], setting Plaintiffs' expert designation deadline Compay February 1,and Defendants' expert designation deadline as March 1, On February 6,the Court granted the parties' joint Motion for Extension of Time to Designate Experts [], extending Plaintiffs' expert designation deadline to February 22,and extending Defendants' expert designation deadline to March 22, See Inssurance [].

The Court then granted the Defendants' unopposed Motion for Extension of Time to Designate Experts [], extending the time another ten 10 days. On March 28,the Court conducted a conference with the parties to discuss expert designations, remaining discovery, and extensions. The Court directed the parties to submit a proposed schedule and discovery completion plan, after which, the Court set the Defendants' expert designation deadline as April 19, On April 19,Spwcialty filed another Motion for Extension, requesting an additional seven 7 days.

Plaintiffs opposed the Motion and filed its Response. This Court granted the Motion and extended another seven 7 days, making expert designations due on April 26, Laird as a non-retained witness on March 4, Laird to provide expert testimony on February 1, and, at that time, were aware of Laird's opinion that the weight of roofing materials was the proximate cause of the collapse.

Laird is consistent Insjrance the opinion expressed during his deposition by Steve Cox It is believed that Mr. Laird will also state that the building collapsed because of the condition of the very old mortar, not because of water standing on Companj building roof.

This Soecialty will address Hudson's two issues: 1 the designation of Mr. Laird as a non-retained expert, and 2 the failure to disclose Mr.

Laird's opinion by the initial disclosure. The Federal Rules of Civil IInsurance set forth different requirements for experts who are designated as "retained," versus experts designated as "non-retained.

A non-retained expert is not required to submit the report of a retained expert, but he is required to present a disclosure of "the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence, or and a summary of those facts which the witness is expected to testify.

The Court should use common sense when evaluating the designation of an expert as retained or non-retained. See Cooper v. Meritor, Inc. March, 27 A retained expert witness is an expert who, without prior knowledge of the facts giving rise to litigation, "is recruited to provide expert opinion testimony.

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