24 Fla. L. Weekly Supp. 521a
Online Reference: FLWSUPP 2407ALBUInsurance — Property — Sinkhole loss — Evidence — Scientific opinion — Where principles of original horizontality and gravitational compaction relied upon by insured’s expert to opine that there is sinkhole activity on insured’s property are not applicable to limestone and sandy/clay soils found on property, and application of these principles to sinkhole analysis is not generally accepted or used by professional engineering or geological community, opinions of expert based on these principles do not satisfy requirements for admissibility — Expert’s testimony regarding N-values he would expect to see if property does not have sinkhole activity is inadmissible where computation of expected N-values is based on equation applicable to pure sand material that cannot be applied to mixed soils and limestone present on property, and calculation has error rate greater than 50% — Expert’s opinion that circular depression on property is sinkhole, based on two borings made 50 feet away from depression, is inadmissible because opinion is based on insufficient facts and data
FREDERICK ALBURY, Plaintiff, v. CITIZENS PROPERTY INSURANCE CORPORATION, Defendant. Circuit Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 14-CA-4446, Division A. September 14, 2016. Robert A. Foster, Jr., Judge (See footnotes 1 and 2). Counsel: Aaron S. Kling, Smith, Kling, Thompson, P.A., Tampa, for Plaintiff. Michael J. Bradford, Hamilton, Miller & Birthisel, LLP, Tampa, for Defendant.
ORDER ON DEFENDANT’S DAUBERT MOTION INLIMINE REGARDING TESTIMONY ANDEVIDENCE BY SUNIL GULATI, P.E.
THIS CAUSE, having come before the Court1 on April 19, 2016, July 27, 2016, and July 28, 2016, upon CITIZENS PROPERTY INSURANCE CORPORATION’s (“Citizens”) Daubert Motion in Limine Regarding Testimony and Evidence by Sunil Gulati, P.E. (the “Motion”), and the Court having reviewed the Motion, having heard testimony of experts and arguments from counsel over three days, having reviewed the evidence submitted and being otherwise duly advised, the Court finds and orders:Background
Plaintiff, FREDERICK ALBURY (“Plaintiff’) filed suit against Citizens regarding a dispute over the existence of and coverage for a “sinkhole loss” at his Property located in South Tampa, Hillsborough County. Specifically, Plaintiff alleges Citizens breached its policy of insurance by denying coverage for Plaintiff’s purported sinkhole loss.
In support of his claim, Plaintiff retained an expert for trial, Mr. Gulati, a licensed professional geo-technical engineer, to perform subsurface testing at his Property to evaluate the presence of “sinkhole activity”. Mr. Gulati issued a sinkhole loss report opining “sinkhole activity” is present at Plaintiff’s Property. As a basis for or to bolster his ultimate opinion, Mr. Gulati, in both his deposition testimony and in his report, opined that “the laws” of “original horizontality” and “gravitational compaction” had both been violated at Plaintiff’s property. Plaintiff sought to have Mr. Gulati offer opinions in this case at trial. Defendant sought a Daubert inquiry. Rather than conduct it in that forum, the judge sua sponte declared a mistrial, and set the Daubert issues for this extensive, evidentiary hearing.The Evidence
The Court’s Order on Citizens’ Motion is based on testimony and evidence presented over a three day evidentiary hearing. This included testimony from Plaintiff’s experts, Mr. Gulati, a professional geo-technical engineer, and James Funderburk, a professional engineer and professional geologist, as well as Citizens’ experts, Mr. Carl Christmann, a professional geotechnical engineer, and Dr. Bruce Nocita, a professional geologist. The Court also reviewed exhibits submitted and entered into evidence by both parties, including deposition transcripts, hearing transcripts, scholarly publications and articles, legal authority and photographs on the issues raised. The Court found the witnesses to be experts in their respective fields and knowledgeable regarding the issues raised.The “Daubert” Standard
Expert witness opinion testimony is only admissible if it satisfies the requirements of Florida Statutes § 90.702, which states:
If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if:
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and methods; and
(3) The witness has applied the principles and methods reliably to the facts of the case.
The Florida Legislature adopted this heightened evidentiary standard in 2013, known as the “Daubert” standard, which has been used by Federal courts for decades. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). The United States Supreme Court in Daubert set forth factors that trial courts should consider when determining whether expert witness testimony is relevant and/or reliable. Id. at 593-594. Those factors include: (i) whether the theory or technique has been tested; (ii) whether the theory or technique has been subject to peer review and publication; (iii) the known or potential error rate of the technique; (iv) the existence and maintenance of standards for the technique; and (v) the general acceptance of the theory in the relevant community, as set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Id. It is the burden of the party offering the expert witness testimony to prove that the expert is qualified to offer the opinion and that his or her opinion is relevant and reliable. Allison v. McGhan Medical Corp., 184 F. 3d 1300, 1306 (11th Cir. 1999) [12 Fla. L. Weekly Fed. C1178]. The objective is to make sure that an expert employs in the courtroom the same level of intellectual rigor that characterizes the practice of experts in the relevant field. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999) [12 Fla. L. Weekly Fed. S141].
At the hearing, both sides presented orders granted by several state judges and a federal magistrate concerning some of the issues raised here. See, e.g., Perez v. Country Mutual Insurance Company, 2016 WL 3232944 (Case No. 5:14-cv-379-Oc-34PRL) (05/04/2016) (No evidentiary hearing). None of those orders were relied upon by the judges here, because none relied upon the extensive evidence presented and arguments made here. As will be explained, this is not an issue of merely “weight” to be given to the testimony or evidence. Rather, the scientific definitions and principles of “original horizontality” and “gravitational compaction” are not malleable terms that can be shaped to fit a context. The undeniable science is that those principles have absolutely no applicability to sinkhole cases in Hillsborough County. The “expected N-value” calculation is clearly a fool’s errand. To allow any use of these concepts to make or buttress an opinion of sinkhole activity is farcical.Findings
A. “The Laws” of Original Horizontality and Gravitational Compaction
1. That Citizens challenged Mr. Gulati’s opinions and characterizations regarding “the laws” of original horizontality and gravitational compaction and their applicability in a sinkhole loss analysis.
2. That Based on the evidence submitted by both parties and the testimony of Plaintiff’s expert, Mr. Funderburk, and Citizens’ expert, Dr. Nocita, the Court finds there is no such thing as a “law” of original horizontality recognized by geologists, but that there is a “principle” of original horizontality. The “principle of original horizontality” is a fundamental concept recognized by geologists for over a century. Specifically, the “principle of original horizontality” states sediments are generally deposited in fairly horizontal layers and will remain this way, unless a geological event, like the movement of tectonic plates, deforms the sedimentary rocks. It is unequivocally only pertinent to analyzing the aging of sedimentary rocks. The soils in Hillsborough County do not contain sedimentary rocks. Limestone is not a sedimentary rock. The principle has absolutely no applicability in the sandy/clayey soils at issue in this case or anywhere in Hillsborough County.
3. That the Court agrees with Dr. Nocita and Mr. Funderburk, that the “violation of the law of original horizontality” is a misnomer and has no applicability to the “sinkhole loss” analysis, required under section 90.702, Florida Statutes. In Plaintiff’s proposed findings submitted after the hearing, Plaintiff’s counsel concede these points.
4. That the Court also finds Mr. Gulati’s use of the “law of gravitational compaction” is misplaced. Specifically, Mr. Gulati is of the opinion that, based upon the “law of gravitational compaction,” the density and strength of materials he encounters while performing standard penetration test (“SPT”) borings should increase with depth, regardless of the material encountered and, when they do not, this indicates the presence of “sinkhole activity.” In this particular case, Mr. Gulati performed SPT borings from 0 to 28 feet below surface. The Court finds, based on the scholarly publications and articles submitted by Plaintiff into evidence and the testimony of Mr. Funderburk, Mr. Christmann, and Dr. Nocita, that there is no actual “law” of gravitational compaction. Rather, it is simply a “concept” recognized by both engineers and geologists. However, this concept only applies to clayey material at shallow depths and/or oil reservoirs at depths much greater than the depths explored by SPT borings in sinkhole claims. It absolutely does not apply to the sandy soils found at the Albury property and throughout Hillsborough County. Also, gravitational compaction only occurs when an additional, exterior force is exerted on the soil at issue. For example, when observing a construction site, one may witness heavy machinery pounding the ground. That would cause gravitational compaction. Similarly, massive mounds of fill may be dumped on a property many months before construction begins in order to cause gravitational compaction. Without such post-initial construction forces being applied to a plot of ground, there is no scientific expectation of gravitational compaction in a sinkhole evaluation or otherwise. The Court observes that if such a “force” exists, it may be a sole or concurring cause of loss.
5. That Mr. Gulati testified he was unaware of any scholarly articles, tests, and/or experiments in which the terms or concepts of “gravitational compaction” and/or “the law or principles of original horizontality” were applied to the analysis of the presence of “sinkhole activity.” Plaintiff’s counsel offered none.
6. That based on the testimony and evidence presented over three days, the Court finds the application of the “principle of original horizontality” and the “concept of gravitational compaction” to a sinkhole analysis is not generally accepted nor used by either the professional engineering or geological community. Necessarily, therefore, the opinions given by Mr. Gulati are not the product of reliable principle or methods. Accordingly, the Court finds Mr. Gulati’s application of the concepts of “gravitational compaction” and “original horizontality” does not meet the standards as required under section 90.702, Florida Statutes. Specifically, the Court finds:
a. Mr. Gulati’s testimony was not shown to be based on sufficient facts or data. His blanket application of these principles in the sinkhole context do not adequately consider the unequivocal, historically certain limitations of the principles in the soil conditions at issue here.
b. The evidence does not show that Mr. Gulati applies the forgoing principles and methods reliably to the specific facts of this case. While these general principles are discussed in the field, the context in which they are discussed by Mr. Gulati render his conclusions unreliable.
c. Per Mr. Gulati’s own testimony, his theories and techniques in relation to these principles in sinkhole investigations have not been tested or subjected to peer review and publication. The evidence presented does not reveal the existence of and maintenance of standards for Mr. Gulati’s techniques and applications. There is no indication of a known or potential rate of error and his application of these principles in the present context has not been shown to be generally accepted in the relevant scientific community.
7. Thus, Mr. Gulati’s opinions regarding “original horizontality” and “gravitational compaction” must be precluded.
B. “Expected N-Value” Computations
1. That according to the testimony of Mr. Gulati, he performs engineering calculations to arrive at “N-Values” he would expect to see at a property based on a scholarly paper published by M. Cubrinovski and K. Ishihar titled “Correlation between penetration resistance and relative density of sandy soils.” This scholarly paper is referred to as the “Tokyo Paper” in the evidentiary hearing. No testimony or evidence was presented regarding whether the Tokyo Paper was peer reviewed. Mr. Gulati testified merely this paper was provided at “a conference” he attended.
2. That Mr. Gulati testified he performs these calculations as part of his analysis in a sinkhole loss investigation. Specifically, Mr. Gulati testified that based upon his experience he is able to determine the appropriate values to plug into the “Myerhoff Equation” referenced in the Tokyo Paper to arrive at what the “expected N-Value” should be at a particular property if sinkhole activity was not present. Mr. Gulati testified that he makes a number of assumptions regarding the density, void ratio, etc. of varying materials when deciding what numbers to plug into the calculation to arrive at an “expected N-Value” at a certain depth.
3. That Citizens did not challenge Mr. Gulati’s ability to testify to the actual N-Values he recorded in the field as the result of actual SPT borings he performed at a particular property. Citizens did challenge Mr. Gulati’s opinion and methodology regarding his ability to calculate what the “expected N-Values” should be at different depths below the surface if a particular property does not have sinkhole activity.
4. That after review of the Tokyo Paper and hearing the testimony of Mr. Gulati, Mr. Funderburk, and Mr. Christmann, the Court finds the “Myerhoff Equation” analysis only applies to pure “sand” material extracted from the ground in an undisturbed frozen state. This equation and analysis cannot be applied to mixed soils, clay material or limestone. Mr. Gulati, however, applies the equation to all different types of material discovered in his SPT borings by plugging in arbitrarily selected values and attempting to work “backward” through the equation. Critically, even when used with appropriately collected sample data, this calculation has a greater than 50% error rate according to the Tokyo paper. That error rate is greatly multiplied in the context of Mr. Gulati’s arbitrary setting of values for the factors of the “Myerhoff Equation”.
5. That Mr. Gulati testified at the hearing that he was unaware of any other professionals in his field, besides Sandy Nettles, P.G., who performs these “expected N-Value” computations. He further testified his opinions regarding the ability to calculate expected N values notwithstanding different soil materials and their application to a sinkhole loss analysis have neither been tested nor subject to peer review.
6. That Mr. Funderburk testified he had not seen nor read the Tokyo Paper prior to Mr. Gulati’s reference to same on the first day of the hearing on Citizens’ Motion, and that he has never calculated “expected N-values.” Mr. Funderburk testified if someone attempted to perform the calculations Mr. Gulati is testifying he can do, they would have to make many assumptions and perform a number of tests on the actual soil samples. Mr. Gulati never performs these tests. Both Mr. Christmann and Mr. Funderburk testified they have no expectation of what “N-Values” will be at a given property and have never seen an application of this calculation, within the geotechnical engineering community, in the context of foundation design or otherwise.
7. That Mr. Christmann, Citizens’ geotechnical engineering expert, testified that in order for Mr. Gulati to arrive at the “expected N-Values” he testifies to, Mr. Gulati had to arbitrarily pick numbers for the void ratio, grain size, and relative density to plug into each calculation he performed at a different depth and that these numbers are completely unknown and cannot be determined without performing significant laboratory testing on undisturbed soil samples, which Mr. Gulati did not do.
8. Accordingly, the Court finds Plaintiff failed to meet his burden under Daubert, section 90.702, Florida Statutes, or the “general acceptance” standard regarding Mr. Gulati’s opinions regarding the calculation of “expected N-Values.” Specifically, the Court finds:
a. Mr. Gulati’s opinions and calculations are not based on sufficient facts and data. Mr. Gulati does not know the actual density or void ratio values for the types of material encountered at a particular property to plug into the calculation as referenced in the Tokyo Paper, on which he solely relies for his expert opinion.
b. Mr. Gulati’s opinions are not the product of reliable principles and methods. The “Myerhoff Equation” and the analysis in the Tokyo Paper, when applied only to sand material with known sample data (i.e. density, void ratio, etc.), has a greater than 50% error rate. Even with such a high error rate, Mr. Gulati seeks to apply this calculation to all types of material with unknown specific sample data values and to a sinkhole activity analysis. By making these assumptions, Mr. Gulati increases the rate of error well past 50%. Mr. Gulati’s use of the “Myerhoff Equation” and Tokyo Paper analysis is not generally accepted by the geotechnical engineering and geology communities. Mr. Gulati’s methods and calculations as applied and referenced above have not been tested or subject to peer review and publication.
c. Because Mr. Gulati does not have sufficient data or facts for his opinions and analysis and because his methods and calculations are not reliable as outlined above, Mr. Gulati cannot reliably apply his analysis and calculations to the facts in this case or in any sinkhole activity analysis.
9. Therefore, Mr. Gulati’s expert testimony regarding “Expected N-Values” must be prohibited.
C. Mr. Gulati’s Opinion on Presence of a “Sinkhole”
1. That Citizens challenged Mr. Gulati’s ability to opine on the presence of a “sinkhole” located approximately 12 feet behind the subject residence, without performing any subsurface testing into the slight depression, i.e., small circular dent in the ground.
2. That “Sinkhole” is defined in the subject policy and in section 627.706, Florida Statutes, as “a landform created by the subsidence of soil, sediment, or rock as underlying strata are dissolved by ground water.” A “sinkhole” forms by collapse into subterranean voids created by dissolution of limestone or dolostone or by subsidence as these strata are dissolved.”
3. That Mr. Gulati is of the opinion that a circular depression, approximately 6 feet across and 7 inches deep is a “sinkhole.” Mr. Gulati’s opinion is based on 2 SPT borings performed approximately 50 feet away from the depression.
4. That given the definition of a “sinkhole,” Mr. Gulati’s lack of data to support his ultimate opinion, and Mr. Funderburk’s testimony that the subsurface profile at a given location can change in just one step, Mr. Gulati’s opinion regarding the presence of a “sinkhole” in the back yard of the subject property must be precluded under Daubert. Specifically, Mr. Gulati’s opinion is not based on sufficient data and/or facts as required under section 90.702, Florida Statutes.
D. Mr. Gulati’s Ability to Opine on Geological Concepts
The Court declines to rule on Mr. Gulati’s ability to opine on geological concepts. Appropriate objections will have to be made and evaluated at trial.Conclusion
Based on the above evidence and findings, Mr. Gulati’s testimony regarding original horizontality, gravitational compaction, and expected N-value computations are precluded at trial under both Daubert and Frye. Lastly, Mr. Gulati’s opinion regarding the presence of a “sinkhole” at the subject property merely based on his untested impression of a depression in the back yard, is not based on sufficient facts and data or reliable science. Thus he is precluded from opining to a sinkhole at the Albury property, without otherwise satisfying Florida law.
[Editor’s note: Order signed by Judge Robert A. Foster, Jr.2 (Footnote included in order.]
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1Judge Isom attended the hearing on April 19, 2016. Judge Barbas, Judge Huey, and Judge Foster attended the hearing on all three days. This unique hearing was undertaken not just with the Albury case in mind, but also all other sinkhole litigation in Hillsborough County.
2Judges Barbas, Huey and Isom concur in order.
