Turubchuk v. E.T. Simonds Construction Company, 3:12-cv-00594

Defendants SIAC and ETS disclosed retained expert G. Patrick Murphy and later served a Second Supplemental Report after the court previously struck an earlier supplement as legally deficient.
The court had earlier (Oct. 24, 2017) struck Murphy’s supplemental opinions for being legal conclusions, speculative, and lacking Daubert-compliant methodology, but gave defendants one final opportunity to cure defects.
Plaintiffs moved to strike Murphy’s Second Supplemental Report; defendants opposed but effectively preserved opinions the court had already found inadmissible.
Murphy’s report opined (among other things) that the plaintiff driver was the sole proximate cause, the roadway markings were proper, and insurers would have acted differently if policies had been disclosed — opinions the court found irrelevant, speculative, or lacking foundation.
The court held the proper damages measure is the reasonable settlement value at the time of the 2007 settlement based on facts known or foreseeable then; Murphy relied on evidence developed years later and did not show that those facts affected settlement decisions in 2007.
The court found Murphy unqualified to opine on roadway marking issues and that his insurance-opinion speculation lacked foundation; it granted Plaintiffs’ motion to strike and barred Murphy from testifying to the challenged opinions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of Murphy’s opinions under Rule 702/Daubert	Murphy’s opinions are irrelevant, speculative, legal conclusions, and lack methodology	Murphy is a qualified retained expert whose opinions should be admitted	Excluded: opinions are inadmissible under Daubert and Rule 702
Relevance of opinions about underlying liability	Underlying liability is irrelevant to fraud/ misrepresentation damages here	Liability opinions inform damages and settlement valuation	Liability opinions are irrelevant to plaintiff’s claims and thus inadmissible except possibly on damages; here excluded
Use of post-settlement evidence to value 2007 settlement	Damages measure is settlement value at time of settlement based on facts known/foreseeable then; later evidence is hindsight	Murphy relied on later-developed reports and testimony to reach conclusions	Excluded: later-developed evidence cannot be used to retroactively justify 2007 settlement value absent proof it was considered then
Foundation for opinions about insurers’ expected actions	Murphy’s insurance conclusions are speculative and unsupported	Murphy can opine from industry experience about insurers’ likely responses	Excluded: opinions speculative, lacked foundation and direct inquiry with insurers or defense counsel

Daubert v. Merrell Dow Pharm., 509 U.S. 579 (trial judge gatekeeping function for expert testimony)
U.S. v. Frazier, 387 F.3d 1244 (7th Cir. 2004) (experts must explain how experience reliably leads to conclusions)
U.S. v. Mamah, 332 F.3d 475 (7th Cir. 2003) (need factual link between data and expert conclusion)
Zenith Elec. Corp. v. WH-T Broad. Corp., 395 F.3d 416 (7th Cir. 2005) (expert cannot rely on mere invocation of expertise)
Gen. Elec. v. Joiner, 522 U.S. 136 (courts may exclude expert conclusions lacking a reliable basis)
Clark v. Takata Corp., 192 F.3d 750 (7th Cir. 1999) (experts must substantiate opinions; speculation inadmissible)
Wintz v. Northrop Corp., 110 F.3d 508 (7th Cir. 1997) (rejecting speculative expert opinion)
U.S. v. Noel, 581 F.3d 490 (7th Cir. 2009) (excluding unsupported conclusory expert testimony)