in Re John Ebin and Joyce O'Connor

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-19-00528-CV
IN RE John EBIN and Joyce O’Connor
Original Mandamus Proceeding 1
Opinion by: Sandee Bryan Marion, Chief Justice
Sitting: Sandee Bryan Marion, Chief Justice
Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: November 13, 2019
PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED IN PART AND
DENIED IN PART
Relators, John Ebin and Joyce O’Connor, assert the trial court abused its discretion by
striking their causation expert and their insurance-claims-handling expert. Because we conclude
the trial court erred by striking relators’ causation expert, we grant the petition for writ of
mandamus in part. We deny all other relief.
BACKGROUND
Following a June 2016 hail storm, relators’ insurance carrier, USAA Casualty Insurance
Co. (“USAA”), sent an independent adjustor, Allcat Claims, to inspect relators’ home. Allcat’s
inspector, Clint Singleton, estimated damage to the home in the form of twelve hail damaged roof
1
This proceeding arises out of Cause No. 17365B, styled Joyce O’Connor and John C. Ebin v. USAA Casualty
Insurance Company and Kimberly Schaeffer, pending in the 198th Judicial District Court, Kerr County, Texas, the
Honorable Rex Emerson presiding.
04-19-00528-CV
tiles and other interior and exterior damages. Singleton’s repair estimate totaled slightly more than
$10,000. Relators then retained a public adjuster, Insurance Claim Advantage (“ICA”), which
inspected the home in November 2016. ICA submitted an estimate of $121,253.99. ICA later
revised its estimate to $128,248.98. USAA denied the amount presented by ICA’s adjuster,
Lindsey Douglas. Relators later sued USAA, alleging USAA failed to properly pay for the
replacement of relators’ roof and other items allegedly damaged in the hail storm. Relators
retained two experts who are the subject of this original proceeding: (1) Derek Steiner on causation
and (2) Adam Brenner on claims handling. In 2018, two years after the hailstorm, Steiner
inspected relators’ home. He submitted an initial estimate that mirrored ICA’s with an amount of
$121.253.99. Steiner later revised his estimate to $128,248.98.
USAA filed motions to strike the testimony and reports of both experts. On August 1,
2019, the trial court conducted a hearing on the motions. The next day, the trial court signed two
orders striking both experts. Relators filed their petition for writ of mandamus and USAA filed a
response.
STANDARD OF REVIEW
Mandamus is an extraordinary remedy. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619, 623
(Tex. 2007) (orig. proceeding). Mandamus will issue only to correct a clear abuse of discretion
when there is no other adequate remedy at law. Id. To satisfy the clear abuse of discretion
standard, the relator must show “the trial court could reasonably have reached only one decision.”
Liberty Nat’l Fire Ins. Co. v. Akin, 927 S.W.2d 627, 630 (Tex. 1996) (orig. proceeding) (quoting
Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding)). The relator has the burden
of establishing both prerequisites to mandamus relief, and this burden is a heavy one. In re CSX
Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig. proceeding) (per curiam).
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CAUSATION EXPERT
Relators designated Derek Steiner as their expert on causation and damages. In its motion
to strike Steiner, USAA raised two challenges to Steiner. First, USAA alleged Steiner’s report,
cost estimate, and testimony failed to use any scientific method to investigate damages and were
not based on a reliable foundation. Second, Steiner’s report, estimate, and testimony are not
relevant as to the reasonableness of USAA’s investigation and coverage decision. 2
A. Admissibility of Expert Testimony
An expert’s opinion is admissible under Texas Rule of Evidence 702 if the expert is
qualified, the expert’s opinion is relevant to the issues in the case, and the expert’s opinion is based
upon a reliable foundation. See TEX. R. EVID. 702. Rule 702’s reliability requirement focuses on
principles, research, and methodology underlying an expert’s conclusions. See E.I. du Pont de
Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995). Under this requirement,
expert testimony is reliable if it is grounded “in the methods and procedures of science” and is
more than merely a “subjective belief or unsupported speculation.” Id. (quoting Daubert v. Merrell
Dow Pharm., Inc., 509 U.S. 579, 590 (1993)). In addition to the “methods and procedures of
science” factors considered under Robinson, when the subject matter of an expert’s opinion
requires an expert to rely on experience, knowledge, and training rather than a certain methodology
to reach a conclusion, a court makes the reliability assessment by determining whether there is
“too great an analytical gap between the data and the opinion proffered.” Mack Trucks, Inc. v.
Tamez, 206 S.W.3d 572, 578 (Tex. 2006) (citing Gammill v. Jack Williams Chevrolet, Inc., 972
S.W.2d 713, 726 (Tex. 1998)). Regardless, “there must be some basis for the opinion offered to
2
During his deposition, Steiner stated he did not intend to testify about the reasonableness of USAA’s or Allcat’s
investigation. To the degree the trial court’s order may have encompassed such testimony, in their petition for writ of
mandamus, relators do not assert the trial court erred by striking Steiner’s testimony on USAA’s investigation and
coverage decision.
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show its reliability.” Gammill, 972 S.W.2d at 726. “An expert’s bare opinion will not suffice and
is unreliable if based solely upon his subjective interpretation of the facts.” Volkswagen of Am.,
Inc. v. Ramirez, 159 S.W.3d 897, 906 (Tex. 2004).
B. Reliability of Steiner’s Opinion on Causation
In its motion to strike Steiner as relators’ causation expert, USAA did not challenge
Steiner’s qualifications or whether his opinion was relevant. Instead, USAA challenged the
reliability of Steiner’s opinion on the ground that he merely copied his report verbatim from ICA’s
estimate of damages, ICA’s estimates on which Steiner based his opinion were unreliable,
Steiner’s deposition testimony contradicted his own report, and his report disagreed with the
homeowner’s testimony.
In its response to the petition for writ of mandamus, USAA contends Steiner merely
“dutifully reported” whatever the author of the ICA estimate “dictated.” For example, USAA
points to the following:
Relators initially designated ICA’s adjuster, Lindsey Douglas, as their causation
expert. However, in her deposition, Douglas testified she did not perform any
inspection of relators’ home, she did not create the estimate submitted by ICA, she
did not know who wrote the estimates or performed the inspections, she did not
know whether the estimates were accurate, and ICA received a 5% to 10% fee on
moneys recovered by their clients. After the deposition, relators de-designated
Douglas.
The 2016 ICA estimates called for skylights replacement and Steiner’s estimate
agreed. However, by the time Steiner inspected the house, the skylights had already
been repaired.
The ICA estimate called for the replacement of windows, and Steiner’s report
agreed. At his deposition, Steiner admitted that he did not know if the windows
needed replacement, because he had not done a water test on them.
The ICA estimate called for the replacement of balcony decks and railings, and
Steiner’s report agreed. However, in his deposition, Steiner admitted replacement
was unnecessary; instead, these items could be sanded and restained.
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Steiner agreed with ICA’s estimate on flashing repair on the roof.
Steiner and Mr. Ebin disagreed on when interior water damage occurred.
USAA asserted Steiner’s opinion lacked reliability because he based his estimate on ICA’s
estimate, which was of unknown accuracy and made by unknown persons. USAA contends
Steiner did not independently verify ICA’s estimates. However, in his deposition, Steiner stated
he met Mr. Ebin when he arrived at the house and Mr. Ebin told him when the hailstorm occurred
and offered a few photos from his cell phone that recorded skylight breaks, water intrusion, and
other damage. Steiner did not take notes from his conversation with Mr. Ebin; however, he
testified his photographs taken from the scene documented his findings. Steiner said he did not
“adopt” ICA’s estimate; instead he used ICA’s estimate as the foundation for his own report. He
explained that he used the ICA estimate as a baseline, but he confirmed on site each of the
measurements by quantity. Steiner said that on the day he went to relators’ home, he and an
assistant took their own photographs and measurements, which they used to confirm ICA’s field
measurements, quantities, counts, material, and other findings.
“The weakness of facts in support of an expert’s opinion generally go to the weight of the
testimony rather than its admissibility.” Onwuteaka v. Gill, 908 S.W.2d 276, 283 (Tex. App.—
Houston [1st Dist.] 1995, no writ). Also, “[j]urors are the sole judges of the credibility of the
witnesses and the weight to give their testimony.” 3 City of Keller v. Wilson, 168 S.W.3d 802, 819
(Tex. 2005). We conclude USAA’s complaints regarding Steiner’s opinion are factors for the jury
to consider when determining what weight to give Steiner’s opinions, not the admissibility of the
opinions themselves. See Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 40-41 (Tex. 2007) (holding
party’s complaints that opposing expert’s testimony did not consider all relevant facts “go to its
3
In this case, the trial court heard only arguments of counsel; no witnesses were called.
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weight, not its admissibility.”); Regent Care Ctr. of San Antonio, L.P. v. Detrick, 567 S.W.3d 752,
763 (Tex. App.—San Antonio 2018, pet. filed) (“Dr. Grodzin’s failure to take the additional step
advocated by Regent Care[—compare summaries prepared by trial counsel with underlying billing
records—]goes only to the weight of his opinions, not their admissibility.”). Therefore, the trial
court erred by striking Steiner as relators’ causation expert.
C. Adequate Remedy at Law
Appellate courts will not intervene to control incidental trial court rulings when an adequate
remedy at law exists. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig.
proceeding); Walker, 827 S.W.2d at 840. A trial court’s ruling on the admissibility of expert
testimony is commonly reviewed on direct appeal. See, e.g., Broders v. Heise, 924 S.W.2d 148,
151 (Tex. 1996) (reviewing trial court’s ruling on admissibility of expert testimony on direct
appeal); see also In re Pilgrim’s Pride Corp., No. 06-08-00109-CV, 2008 WL 4907589, *2 (Tex.
App.—Texarkana Nov.17, 2008, orig. proceeding) (mem. op.) (denying mandamus relief as to
order striking expert testimony on ground relator had adequate remedy by appeal because 142-
page transcript of hearing at which expert testified would be available in a post-trial appeal); In re
Thornton-Johnson, 65 S.W.3d 137, 139 (Tex. App.—Amarillo 2001, orig. proceeding) (relators
had adequate remedy by appeal where relators’ other claims or defenses were unaffected by trial
court’s order excluding expert testimony).
However, an appeal is an inadequate remedy if “a party’s ability to present a viable claim
or defense at trial is either completely vitiated or severely compromised.” In re Garza, 544 S.W.3d
836, 840 (Tex. 2018) (orig. proceeding). With respect to this scenario, a “relator must establish
the effective denial of a reasonable opportunity to develop the merits of his or her case, so that the
trial would be a waste of judicial resources.” Walker, 827 S.W.2d at 843. Here, relators contend,
without dispute by USAA, that they cannot prove their damage claims or the cost to repair those
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damages without Steiner. Therefore, according to relators, trial would be a waste of judicial
resources.
USAA counters that appeal is an adequate remedy because relators can preserve any error
through a bill of exceptions. We disagree. “Requiring a party to try its lawsuit without expert
testimony, only to have the lawsuit rendered a certain nullity on appeal, falls short of a remedy by
appeal.” In re Kings Ridge Homeowners Ass’n, Inc., 303 S.W.3d 773, 786 (Tex. App.—Fort
Worth 2009, orig. proceeding) (“The presence of the summary of the testimony in the mandamus
record does not compensate for the gutting of [relators’] claims at trial.”). Here, the trial court has
excluded relators’ sole causation expert, preventing them from fairly trying their lawsuit, thus
resulting in foreseeable harm. See id. Therefore, we conclude relators do not have an adequate
remedy at law.
CLAIMS-HANDLING EXPERT
Relators next assert the trial court abused its discretion by striking the testimony of Adam
Brenner, their expert on claims-handling. Relators contend they filed a “Notice De-Designating
Adam Brenner” on August 2, 2019 at approximately 9:45a.m. Relators also contend the trial court
granted USAA’s motion to strike Brenner on August 2 at 1:45p.m. Relators later filed a motion
with the trial court asking it to modify its order. The trial court had not yet ruled on the motion
when relators filed their petition for writ of mandamus. Because relators’ motion to modify is
pending before the trial court, we decline to order the trial court to vacate its order striking Brenner.
CONCLUSION
For the reasons stated above, we conditionally grant relators’ petition for writ of mandamus
in part and direct the trial court to vacate its August 2, 2019 “Order on Defendant’s Motion to
Strike the Testimony and Report of Derek Steiner.” The writ will issue only in the event we are
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notified the trial court fails to comply within fifteen days from the date of this opinion. All other
relief requested in relators’ petition is denied.
Sandee Bryan Marion, Chief Justice
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