• Atlanta
• Boston
• Dallas
• Ft. Lauderdale
• London
• Minneapolis
• New York
• Oakland
• Philadelphia
• Washington, DC

by David B. Winter

In response to a motion for summary judgment, plaintiffs often attempt to create a fact issue by arguing that the experts at issue disagree on a material fact that makes summary judgment inappropriate. This requires that the plaintiff provide an affidavit from their expert that sets forth the expert’s opinions and the factual basis for such opinions.

As recently discussed by the United States Court of Appeals for the Fifth Circuit, an affidavit that merely sets forth conclusory, subjective opinions is not sufficient to create a fact issue. In Smiley Team II, Inc. v. General Star Insurance Co., Smiley Team suffered damage to its building from Hurricane Harvey in August 2017 and then again when the building was struck by a vehicle.[1] The insurance policy precluded coverage for pre-existing wear and tear or damage caused by a windstorms or hail. Accordingly, General Star paid Smiley Team for the damaged it attributed to the vehicle impact and denied coverage for claimed roof damage asserting that such damage was not the result of the collision.

In response to General Star’s summary-judgment motion, Smiley Team attached an affidavit from its expert which stated:

I estimate the car colliding with the Property September 14, 2017 only and no preexisting event or its damages caused all damages identified in my estimate, including damages to the roof ... I implement reliable methodology in my testimony in this case because (1) I examined the property for which I facilitated my estimate on the amount of loss the September 14, 2017 car collision with the Property caused to the Property and (2) my estimate entailed I estimated the September 14, 2017 car collision caused covered damages to the property including damages to the roof ... totaling $94,103.22 based on the condition and state of covered damages I observed and my education, training and professional experience as an Estimator. Additionally, I considered all evidence regarding this claim, the identified damages, alternative causes of loss and the insurance company's expert's opinions before forming my own opinion.[2]

The trial court found that this affidavit was insufficient to create a fact issue and granted summary judgment for General Star.

On appeal, the Fifth Circuit agreed with the trial court finding:

Plaintiff's expert's affidavit makes conclusory statements and naked assertions that the roof damage was caused by the vehicle collision. He provides no supporting factual evidence or methodology for how he arrived at the conclusion that the roof damage was caused by the vehicle collision. Such a self-serving affidavit is not sufficient to defeat summary judgment. “We have held that the district court may inquire into the reliability and foundation of any expert's opinion to determine its admissibility.” Orthopedic & Sports Inj. Clinic v. Wang Lab'ys, Inc., 922 F.2d 220, 224-25 (5th Cir. 1991). However, when such an affidavit is conclusory in fashion, “[w]e have recognized that there is a [certain level] below which [it] must not sink if it is to provide the basis for a genuine issue of material fact.” Id. “Without more than credentials and a subjective opinion, an expert's testimony that ‘it is so’ is not admissible.” Id. at 225 (quoting Viterbo v. Dow Chem. Co., 826 F.2d 420, 424 (5th Cir. 1987)).[3]

While this unpublished decision does not create new law, it does reemphasize the importance of counsel to make sure that their opposition has properly supported any summary-judgment evidence. An expert’s affidavit must have more than just credentials and conclusions, it must provide some analysis or support to create a genuine issue of material fact. As in Smiley Team, a party’s and or its counsel’s failure to provide a sufficient affidavit can result in summary judgment against that party.

[1] No. 23-40129, 2024 WL 2796652 (5th Cir. May 31, 2024) (unpublished).

[2] Smiley Team II, Inc. v. General Star Ins. Co., No. 3:21-cv-103, 2022 WL 18909496, at *3 (S.D. Tex. Oct. 28, 2022).

[3]  2024 WL 2796652.

______________________________________

The opinions expressed are those of the authors and do not necessarily reflect the views of the firm or its clients. This article is for general information purposes and is not intended to be and should not be taken as legal advice.