CASE NO.
71 505 686 12
MID AMERICA HOLDINGS, LLC
Claimant,
v.
E SOURCE HOLDINGS, LLC
Respondent.
AMERICAN ARBITRATION
ASSOCIATION
RESPONDENTS MOTION TO EXCLUDE THE TESTIMONY
OF CLAIMANTS EXPERT R. B. NARRAMORE
ON NEGLIGENCE AND DEMOLITION
NOW COMES E SOURCE HOLDINGS, LLC (E Source), Respondent, and moves
to exclude the testimony of Claimants Expert R. B. Narramore on any matters related to
Negligence and Demolition and would respectfully show as follows:
I.
INTRODUCTION
1.
Mid America Holdings, LLC (Mid America) is making a claim that E Source injured
the improvements on its land through negligence in demolishing several structures on
Mid Americas property. Mid America originally designated R. B. Narramore as an
expert to testify about what is necessary to repair Mid Americas damaged buildings
and the cost of such repairs. Subsequently, Mid America designated Mr. Narramore
as an expert to testify that E Source was negligent in allowing the drops to damage
structures that were not to be demolished or removed.
RESPONDENTS MOTION TO EXCLUDE THE TESTIMONY
AND REPORT OF CLAIMANTS EXPERT R.B. NARRAMORE
H:\Legal\EXPERT\Daubert\Motion to Exclude Narramore .wpd
PAGE 1
2.
For the later designation, Mid America has provided no report of Mr. Narramores
opinions nor has it provided a resume or any other indication of Mr. Narramores
qualifications as an expert on the standard of care in the demolition industry or on
improper demolition techniques. The only reference to Mr. Narramores background
was that he has been in the metal building business since 1977.
3.
Mr. Narramores testimony on any aspect of the demolition business and on whether
E Sources crew deviated from the standard of care in the demolition business should
be excluded because (a) Mid America failed to make a proper designation of Mr.
Narramore regarding negligence or the demolition business, (b) he is not qualified as
an expert in matters related to the demolition business and (c) any opinions he might
have in those areas would not be reliable.
II.
ARGUMENT AND AUTHORITY
A.
Claimant bears the burden of establishing admissibility of its experts
testimony.
4.
Once an objection has been raised to an experts testimony, the burden rests upon the
party offering that expert to prove by a preponderance of the evidence that the
testimony satisfies the requirements of admissibility under the standards of I.E.
DuPont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995).
RESPONDENTS MOTION TO EXCLUDE THE TESTIMONY
AND REPORT OF CLAIMANTS EXPERT R.B. NARRAMORE
H:\Legal\EXPERT\Daubert\Motion to Exclude Narramore .wpd
PAGE 2
B.
Narramore Was Not Properly Designated
5.
Regarding the demolition business, Mid Americas designation of Mr. Narramore was
only the following:
Mr. Narramore has been in the metal building business since 1977. Mr.
Narramore has constructed and erected metal buildings allover East Texas. Mr.
Narramore witnessed the drops. Mr. Narramore is expected to testify that E
Source Holdings was negligent in allowing the drops to damage structures that
were not to be demolished or removed.
6.
Mid America failed to give Mr. Narramores opinions and failed to give any facts of his
education and/or experience in the demolition business.
B.
Narramore Is Not Qualified as an Expert for the Designated Opinion
7.
An expert must be qualified by knowledge, skill, experience, training, or education to
assist the trier of fact to understand the evidence or to determine a fact in issue. In
re Commitment of Bohannan, 388 S.W.3d 296, 304 (Tex. 2012)(quoting
Tex.R.Evid.702). Just because a witness has knowledge, skill, expertise, or training
does not necessarily mean that the witness can assist the trier-of-fact. Id.
8.
Trial courts must ensure that those who purport to be experts truly have expertise
concerning the actual subject about which they are offering an opinion. In re
Commitment of Bohannan, 388 S.W.3d 296, 305 (Tex. 2012). The test is whether the
offering party has established that the expert has knowledge, skill, experience, training,
or education regarding the specific issue before the court which would qualify the
expert to give an opinion on that particular subject. Id.
9.
The party offering the expert's testimony bears the burden to prove that the witness is
qualified under Rule 702. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713,
718 (Tex.1998). The offering party must demonstrate that the witness possesses
RESPONDENTS MOTION TO EXCLUDE THE TESTIMONY
AND REPORT OF CLAIMANTS EXPERT R.B. NARRAMORE
H:\Legal\EXPERT\Daubert\Motion to Exclude Narramore .wpd
PAGE 3
special knowledge as to the very matter on which the witness proposes to give an
opinion. Id.
10.
In this case, all that Mid America has disclosed about Mr. Narramore is that he has
built metal buildings since 1977. That does not show that he is qualified to give an
opinion about that E Source was negligent in the way it demolished structures.
Therefore, Mr. Narramores testimony as an expert on any matter related to demolition
or negligence must be excluded.
C.
Narramores Opinion Is Unreliable and Should Be Excluded
11.
A court must exclude the opinion testimony of an expert if it is not reliable. Weiss vs.
Mechanical Associated Services, Inc., 989 S.W.2d 120, 124 (Tex. App.- San Antonio
1999, pet. dend); Merrill Dow Pharmaceuticals v. Havner, 953 S.W.2d 706 (Tex.
1997 ). Respondent objects to and the Arbitrator should exclude Narramores opinion
on negligence or on the demolition business because the opinion is unreliable for the
following reasons:
a.
There is no evidence that Mr. Narramore used any recognized methodology to
form his opinion that E Source was negligent in the demolition of Mid Americas
structures.
b.
Mr. Narramore based his opinion on techniques or methodology that rely on his
subjective interpretation of facts.
c.
Mr. Narramores opinion is not based on sufficient facts or data, as required by
Texas Rules of Evidence 702 and 703.
d.
Mr. Narramores assumptions are faulty.
RESPONDENTS MOTION TO EXCLUDE THE TESTIMONY
AND REPORT OF CLAIMANTS EXPERT R.B. NARRAMORE
H:\Legal\EXPERT\Daubert\Motion to Exclude Narramore .wpd
PAGE 4
D.
Mr. Narramores Conclusory Statements Are Not Evidence
12.
Mr. Narramore brings to this arbitration little more than his subjective opinion about E
Sources negligence and the demolition business. This is not evidence that would
support a judgment or an award. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d
706, 712 (Tex.1997). An expert who supplies nothing but a bottom line bare opinion
supplies nothing of value to the arbitration. Id.
PRAYER
WHEREFORE, the above premises considered, E Source prays that its objections to
the opinion testimony of Mr. Narramore related to any aspect of E Sources negligence or on
the demolition business be sustained and that such testim ony be excluded.
Respectfully submitted,
DOWNS & STANFORD, P.C.
By: _______________________________
Gaddy Wells
State Bar No. 21153500
2001 Bryan Street, Suite 4000
Dallas, Texas 75201
(214)748-7900
(214)748-4530 (Facsimile)
ATTORNEYS FOR DEFENDANTS
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing instrument has been
served upon counsel for Plaintiffs on this the _____ day of September, 2013, via:
_____
_____
certified mail, return receipt requested
facsimile
___________________________
Gaddy Wells
RESPONDENTS MOTION TO EXCLUDE THE TESTIMONY
AND REPORT OF CLAIMANTS EXPERT R.B. NARRAMORE
H:\Legal\EXPERT\Daubert\Motion to Exclude Narramore .wpd
PAGE 5
