227 So. 3d 316
La. Ct. App.2017Background
- Plaintiffs Melvin and Anjeanette Adolph claimed water/mold damage from a leaking toilet and submitted a mitigation expert affidavit (Scott Dowdy) after inspections.
- Lighthouse Property Insurance inspected, hired an engineer who concluded the toilet leak could not have caused the damage, and denied coverage.
- Plaintiffs sued; Lighthouse moved for summary judgment arguing (1) damage not covered and (2) leaking toilet could not have caused the damage. Plaintiffs opposed and filed Dowdy’s affidavit, CV, and report.
- Lighthouse filed a reply memorandum that included a “motion to strike” challenging Dowdy’s qualifications; the trial court struck Dowdy’s affidavit, granted summary judgment for Lighthouse, and dismissed plaintiffs’ claim with prejudice.
- On appeal the court reviewed whether the challenge to the expert was properly made and whether the trial court abused its discretion in excluding Dowdy’s affidavit and granting summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper procedure to challenge an expert affidavit on summary judgment | Objection in reply/hearing was plaintiffs’ first chance; Dowdy’s affidavit should stand because procedural rules limit reply content | Objection may be raised in reply; Lighthouse labeled objection a motion to strike and argued Dowdy lacked necessary technical qualifications | Trial court erred to strike without using art. 1425 procedure; reply “motion to strike” was not the exclusive method, but the court must treat the affidavit as meeting art. 967 absent a proper art. 1425 challenge; reversal on strike. |
| Admissibility / qualification of Dowdy’s expert affidavit | Dowdy’s CV and experience handling 300+ water intrusion projects show competency under La. C.C.P. art. 967(A) to opine on elevations and cause of damage | Dowdy lacked formal training in engineering/hydrodynamics/topography and thus was unqualified to offer the causation opinion | Appellate court accepted Dowdy’s affidavit met art. 967(A); absent a formal art. 1425 challenge, trial court must not weigh credibility or make evidentiary Daubert-type determinations on summary judgment. Trial court abused discretion in excluding affidavit. |
| Timeliness and form of Lighthouse’s reply and motion to strike | Plaintiffs argued they had no adequate opportunity to defend expert’s qualifications at the hearing | Lighthouse argued reply (fax-filed June 20) was timely and could properly attack the affidavit | Majority treated the procedural objection as improperly raised by a motion to strike and reversed; concurring opinions debated timeliness (holiday computation) but all agreed exclusion was erroneous and summary judgment vacated. |
| Grant of summary judgment | Plaintiffs: genuine issues of material fact remain based on Dowdy’s affidavit | Lighthouse: no genuine issue — Dowdy unqualified and facts support engineer’s conclusion | Summary judgment vacated; genuine issues remain and case remanded for further proceedings. |
Key Cases Cited
- Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (U.S. 1993) (framework for admissibility of expert scientific testimony)
- Independent Fire Insurance Co. v. Sunbeam Corp., 755 So.2d 226 (La. 2000) (expert opinion may be considered on summary judgment subject to challenge)
- Pumphrey v. Harris, 111 So.3d 86 (La. App. 1 Cir. 2012) (trial court may not weigh credibility or evaluate conflicting evidence on summary judgment)