There are many things that frustrate me as a lawyer representing insureds in first-party property insurance litigation. One of them is repeatedly encountering defense counsel who do not understand–or pretend to not understand–that a public adjuster is a hybrid (“non-retained”) fact/expert witness, analogous to a treating physician. Defense lawyers who represent large, powerful corporations–they have massive litigation budgets–cannot seem to understand that not all witnesses who are allowed to give opinion testimony (i.e., experts) on technical or scientific matters are specially retained after the lawsuit has been filed.

Indeed, there are two types of experts: (1) experts specially retained and paid either a flat fee or by the hour for their analysis and testimony after litigation is commenced; and (2) non-retained “hybrid” witnesses who were involved in the matter prior to litigation. Hybrid witnesses can testify about facts–what they observed and did–but they might also be qualified to testify in the form of an opinion because it would “assist the trier of fact.” What we are really talking about is rule 702 of the Federal Rules of Evidence or section 90.702, Florida Statutes, in a case that is being litigated in Florida state court. Examples of the second type of expert are treating physicians and public insurance adjusters.

Section 90.702 of the Florida Statutes provides:

90.702 Testimony by experts.—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.

Defense lawyers on the corporate side often seem to think that retained experts are the only type of expert. They just cannot imagine that a witness who is not being paid by the plaintiff’s law firm can qualify to be a testifying expert. (Their real knowledge deficiency is understanding that the underlying basis of the entire issue is the rule 702 standard for giving expert opinion testimony, not whether an expert was retained in the traditional way after the commencement of the lawsuit.)

And they often seem to think–or at least their motions imply that they think–that a witness is “all or nothing” in terms of being allowed to testify at all. He is either “an expert” who gets a crown on his head after the Court says “I hereby deem thee an expert,” in which case he may testify, or he is not an expert, so he can’t testify at all. That view is clearly wrong under both the rule of evidence and the caselaw. Each witness is simply a human being. It is really a question-by-question issue under rule 702, not about putting a crown on a person’s head or not. The issue is whether the witness, through education, knowledge, skill, training, or experience, can “assist the trier of fact” by testifying in the form of an opinion on scientific or technical matters. That’s it.

The classic example of a hybrid fact/expert witness is a treating physician. The treating physician treated a patient before a lawsuit was filed. The treating doctor can testify about factual observations (“At 8 PM, the plaintiff came into the emergency room bleeding from the neck, and I applied a tourniquet to stop the bleeding.”) This witness was not hired (specially retained) by a party to a lawsuit to give expert testimony after a lawsuit was filed, but he or she is still a doctor with a lot of education, experience, knowledge, skill, and training. Such a witness should be listed as a hybrid expert on the parties’ witness lists, and he or she might be allowed to give opinion testimony under rule 702 (“The bleeding seemed to be caused by a bullet.”)

Another example of a hybrid fact/expert witness is a public insurance adjuster. Although they can sometimes be specially retained to give expert testimony, a public adjuster is usually hired by an insured before a lawsuit is filed. The public adjuster investigates the claim, takes photos, prepares an estimate of the damages, and negotiates with the insurance company on behalf of the insured. The public adjuster advocates for the insured and is paid–pursuant to the requirement of Florida law–on a contingency fee basis. A public adjuster can charge up to 20% of a recovery on a normal claim and 10% if the claim occurred during a Governor-declared emergency (e.g., hurricane). The public adjuster sees the damaged property with his own eyes, interviews the insured, and takes photos. At a minimum, this makes the public adjuster a fact witness. If the public adjuster is unable to reach a satisfactory settlement with the insurance company, insureds often hire a lawyer to file a lawsuit.

After a lawsuit is filed, the public adjuster remains involved and should be listed, by the insured, as a non-retained expert witness for trial. This happens because the insured’s lawyer believes that the public adjuster is qualified to testify in the form of an opinion under section 90.702 of the Florida Statutes (or rule 702 of the Federal Rules of Evidence). That’s it. The public adjuster’s compensation–if any–will remain the contingency fee agreement pursuant to which he was hired by the insured before the lawsuit was commenced. The public adjuster is not specially retained and paid an hourly rate or flat fee by the insured’s law firm to be a testifying expert. The caselaw is clear that a public adjuster in this situation is analogous to a treating physician. He was involved in the matter presuit, making factual observations, but he might also have expertise in the area of adjusting insurance claims, quantifying damages, and perhaps even causation issues (i.e., whether damages were caused by the hurricane in question or were pre-existing damages).

A recent case in the federal Middle District of Florida once again reminded us of this law. In Hacienda Carballo, LLC v. Colony Ins. Co., Case No. 2:22-cv-118-JLB-KCD. (M.D. Fla. June 25, 2024), a plumbing leak case, Hacienda Carballo, LLC (“the insured”) sued Colony Insurance Company (“the insurance company”) for breach of an insurance policy, based on the insurance company’s failure to provide coverage and remit payment for damages sustained to the insured property’s tile flooring and walls.

The insurance company moved for summary judgment, arguing that (1) no genuine issue of material fact exist because the insured could not prove the water leak caused the tile and wall damage without expert testimony and (2) the insured’s public adjuster, Sigelfrido Rojas (“the PA”), should have been excluded as an expert.

The insured filed a response to the motion for summary judgment, arguing that genuine issues of material fact existed and that a “traditional expert” is not required to establish the cause of the damage.

The insurance company also filed a Daubert motion challenging the PA.

The court denied the insurance company’s motion for summary judgment, finding that genuine issues of material fact existed as to the cause of the tile and wall damage and the amount of damages—factual issues best reserved for a jury.

The court reserved ruling on the insurance company’s arguments in the motion for summary judgment regarding the PA’s exclusion as an expert witness and the insurance company’s Daubert motion, because “the record is devoid of any disclosure of Rojas as an expert or ‘hybrid witness.’”

BACKGROUND

The case involved a homeowners insurance claim arising from damages allegedly caused by a plumbing leak that occurred on or about April 23, 2021. The insurance company issued a homeowners insurance policy (the “Policy”) to the insured for the property located at 27146 US Hwy 27, Moore Haven, Florida 33471 (the “Property”). The insured reported damage from a plumbing leak, including wall and tile damage.

In a letter dated October 8, 2021, the insurance company acknowledged that the damage sustained from the plumbing leak was a covered loss. However, the insurance company also stated that the damage to the tile flooring was not caused by the plumbing leak or any other covered cause of loss and, therefore, was not covered under the policy.

The insurance company’s mitigation contractor’s estimate for repairs attributable to the loss totaled $4,152.24, shy of the $5,000.00 deductible. The PA, on the other hand, submitted an estimate for repairs totaling more than $95,000.00, which included replacement of all the tile flooring.

On January 27, 2022, the insured filed a one-count complaint for breach of contract. The complaint was removed to federal court on February 21, 2022.

SUMMARY JUDGMENT STANDARD

The court noted that summary judgment is only proper when the movant shows there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). An issue of fact is genuine if the record, taken as a whole, could lead a rational trier of fact to find for the nonmoving party.  Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th Cir. 2004). An issue of fact is material if, under the applicable substantive law, it might affect the outcome of the case. Id.at 1259. At the summary judgment stage, the court’s function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 242-43 (1986).

DISCUSSION

To prevail on summary judgment on the insured’s breach of contract claim, the insurance company had to show no genuine issue of material fact as to (1) the existence of a valid contract; (2) a material breach of that contract; and (3) damages. See Beck v. Lazard Freres & Co., LLC, 175 F.3d 913, 914 (11th Cir. 1999).

The insurance company argued there was no evidence the plumbing pipe leak caused the tile or wall damage, because the PA should not be allowed to testify as an expert, and, therefore, no genuine issue of material fact existed as to the cause of loss and damages.

The insurance company also argued that expert testimony is required to prove causation and that no other experts had been disclosed by the insured. The insurance company contended that the PA “was not retained as an expert in this case with regard to cause of any damages he estimated or with regard to the cause of loss.” The insurance company also took issue with the amount of damages claimed by the insured, stating that it was undisputed that there was “no evidence of any damage other than a $700.00 bill to repair the leaky pipe.”

In response, the insured argued that any questions as to scope and amount of damages must be resolved by a jury. Specifically, the insured disputed the insured’s classification of the PA as an expert and argued the PA was a “hybrid witness” who was never “retained” to determine the cause of loss. Jeff comment: the insured’s lawyer was confused and the entire opinion is poorly written. In any event, the insured’s lawyer should have argued that the PA was, indeed, an expert who can give opinion testimony under rule 702. The PA is a hybrid–yes, a hybrid fact/expert witness. A “hybrid” witness is an expert, not the opposite of an expert. The insured’s lawyer should have disputed only the insurance company’s argument that a retained expert is the only type of expert. In short, the insured’s argument in this situation is (1) the PA is an expert qualified to give expert opinion testimony under rule 702; and (2) he is just not a “traditional retained expert” in the way that corporate lawyers think about experts. (I admit the insured’s lawyer in Hacienda Carballo might have been forced into the argument he made because he had failed to list the PA on his expert witness list. That makes the entire opinion confusing, and sometimes bad facts make bad law. The insured’s lawyer in Hacienda Carballo should have listed the PA on his expert witness list as a nonretained hybrid expert. What he did (not listing an expert), instead, forced the court to rule that experts are not needed to establish causation, which is a weaker proposition. The correct view of the law is that (1) experts are needed to prove causation, and (2) public adjusters can be experts who can give causation opinion testimony pursuant to rule 702.

The insured contended that a traditional expert is not required to establish the scope of loss and that they planned to rely both on their own testimony, as well as the testimony of a hybrid witness (the PA), to establish the scope of the loss. The insured pointed to genuine issues of material fact regarding how many tiles were broken, whether certain tiles “were damaged in the course of or to allow mitigation,” whether there was damage to the walls and paint, whether there was visible water in the crawl space, and the cost to make the repairs.

The court held that the insurance company’s arguments in support of summary judgment “failed on account of existing genuine issues of material fact—not to mention that [the PA] can testify, at minimum, as a lay witness.”

I. The PA’s Testimony was, at Minimum, Admissible as Lay Testimony.

The insurance company, in both its motion for summary judgment and subsequently filed Daubert motion, sought to exclude [the PA] as an expert—while simultaneously arguing that the PA was “not retained as an expert in this case with regard to cause of any damages he estimated or with regard to the cost of the loss.”

The Court found the insurance company’s arguments in favor of exclusion unavailing considering: (A) The PA had not been disclosed as an expert or “hybrid witness,” the time to do so has passed, and he denied his retention as an expert; (B) even if the PA was excluded under Daubert, he could testify as a lay witness; and (C) an expert is not required to prove causation.

Jeff comment: the insured’s lawyer should have listed the PA as an expert on his expert witness list. A hybrid fact/expert witness is an expert, just not a specially retained one.

A. The PA Had Not Been Disclosed as an Expert.

The PA had not been disclosed as an expert, the deadline to disclose expert reports had expired, and the PA denied his identification and retention as an expert. Jeff comment: Again, everyone is confused. When the insured’s lawyer lists the PA on his expert witness list that gets filed in a lawsuit, the PA might not even know it. I don’t call the PA on my case and tell him I’m filing my expert witness list today and he’s on it. By listing the PA as an expert in his court filings, the lawyer is simply telling the court and opposing party that the PA is qualified to give opinion testimony pursuant to rule 702. An expert does not necessarily have to be retained and paid as a professional testifying expert after a lawsuit is commenced. The PA, as a hybrid witness, is qualified to give opinion testimony (on damages and, even more misunderstood, causation) under rule 702. He does not have to be “retained as an expert” after the lawsuit is filed in the way that professional testifying experts are. It seems that even the insured’s lawyer in Hacienda Carballo did not really understand the fundamentals behind this issue.

The court stated it “f[ound] nothing in the record to suggest that [the PA] was ever retained as an expert or that [the insured] ever formally disclosed him as an expert.”  According to the court:

Furthering the confusion of [the PA]’s role as a witness, [the insured] asserts that [the PA] is a “hybrid witness” “by virtue of his training and experience, and because his testimony on matters beyond the experience of a typical lay person would assist the jury in determining issues of fact.” (Doc. 70 at 8; Doc. 69 ¶ 11). The Court finds it particularly instructive that [the PA] claims he is “not an expert” and has not been retained as such. (Doc. 58-1 at 25, Tr. 97).

Again, the court was very confused. Like we hear regarding many aspects of life, “it is what it is.” The PA was, indeed, and expert, even if he did not know it. I’m not talking about him being too humble. I’m simply stating that we are talking about a legal issue under rule 702. The PA was qualified to testify in the form of an opinion because he had specialized knowledge, skills, and experience that could assist the trier of fact in determining a fact in issue. The insured’s lawyer seems to have recognized that, even though he had not listed the PA on his expert witness list. Also, again, the PA would not be “retained” as an expert, but so what? Frankly, as it relates to this legal issue, that was none of his business. He was a hybrid fact/expert witness under rule 702, whether he knew it or not. The insured’s lawyer failed to speak up or educate him on this matter, apparently.

As an aside, the reason I’m writing this article today is that I just experienced this ignorance on the part of an insurance defense lawyer yesterday. The insurance defense lawyer asked the PA during a deposition “when he became an expert in this case.” This was showing ignorance and the corporate idea that all experts are specially retained and paid by the party’s lawyer after a lawsuit is filed. I had to object and explain what I’m explaining in this article. The PA is listed as an expert on my expert witness list because I, the lawyer, believe he is qualified to give opinion testimony on at least some issues pursuant to rule 702. That’s it. I did not call the PA one day and say “now you’re an expert in my case.” I don’t have to do that. Further, the corporate lawyer’s questions indicated he could not contemplate an “expert” who was not retained and being paid an hourly rate for his testimony. That’s a retained expert. The PA is a hybrid fact/expert witness.

Returning to Hacienda Carballo, the court stated that a “retained expert” is one who is retained or specially employed by a party to provide expert testimony in the case or for some other purpose.  Cedant v. United States, 75 F.4th 1314, 1322 (11th Cir. 2023) (citing Fed. R. Civ. P. 26(a)(2)(B)). On the other hand, said the court, a “non-retained expert witness” possesses some first-hand factual awareness of the subject matter of the suit. Jeff comment: even here, the court is using weird language. A witness with first-hand factual awareness could be retained or specially employed, too. What is missing from the court’s definition is the expertise part. A non-retained expert witness possesses some first-hand factual awareness of the subject matter of the suit and is qualified by knowledge, skill, experience, training, or education to testify in the form of opinion because his scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue. Again, we are just talking about the rule 702 standard for when a witness may testify in the form of opinion as opposed to just stating the facts he observed. Treating physicians and public adjusters qualify as non-retained experts.

The Hacienda Carballo court noted that the distinction is instructive as to the types of disclosures required by the parties under Federal Rule of Civil Procedure 26. A detailed written report must be disclosed for a retained expert (Fed. R. Civ. P. 26(a)(2)(B)), while a party need only disclose a non-retained expert’s “subject matter on which the witness is expected to present evidence” and a “summary of the facts and opinions to which the witness is expected to testify.” Fed. R. Civ. P. 26(a)(2)(C).

Assuming the PA was being presented as a non-retained expert witness, as the insured claimed, the insured had to take the steps to properly disclose him as such. If the Court allowed the untimely disclosure, then his exclusion could be taken up prior to trial.

B. The PA Could Testify as a Lay Witness.

The court noted that a lay witness can testify in the form of an opinion if it is “(a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Fed. R. Evid. 701. On April 24, 2021, one day after the plumbing leak, the PA inspected the property and visually observed and perceived the damage firsthand.

The court reasoned that even if [the PA] could be excluded as an expert and could only testify as a lay witness, the “jury is free to consider witness perceptions (along with all the evidence) when determining causation.” Smith Lake Marina & Resort LLC v. Auto-Owners Ins. Co., No. 5:16-CV-01104-AKK, 2017 WL 4167448, at *3 (N.D. Ala. Sept. 20, 2017) (citing Sentilles v. Inter-Caribbean Shipping Corp., 361 U.S. 107, 109 (1959) (finding a lay witness’s perception of conditions surrounding the potential cause of loss admissible). “[J]uries, not experts, are the ultimate arbiters of causation . . . .” Id. The PA could certainly testify, concluded the court, as to the conditions he observed in the course of his inspection under the limitations found in Federal Rule of Evidence 701.

C. Experts Are Not Required to Prove Causation.

The insurance company, said the court, mischaracterized the law by arguing that an expert is required to determine the cause of loss. The insurance company relied solely on Dias v. GeoVera Specialty Ins. Co., 543 F. Supp. 3d 1282, 1288 (M.D. Fla. 2021) to support its argument that summary judgment should be granted and the expert testimony of a public adjuster should be struck, just as the Court held in Dias. However, said the court, the insurance company’s reliance on Dias was misplaced. The Dias Court never considered the admissibility of the public adjuster testimony as a lay witness, but instead focused principally on the public adjuster expert’s methodology under Daubert. See Dias v. GeoVera Specialty Ins. Co., 543 F. Supp. 3d 1282, 1288 (M.D. Fla. 2021) (excluding a public adjuster as an expert when his determinations and the details of such were based on mere conjecture, and he failed to offer any methodology to support his opinion).

Even more, said the court, an expert is not always required to determine causation. Greater Hall Temple Church of God v. S. Mut. Church Ins. Co., 820 F. App’x 915, 922 (11th Cir. 2020) (finding that expert testimony is not required when lay witnesses can provide enough circumstantial evidence for the jury to conclude as to causation, despite none of the lay witnesses actually witnessing the occurrence of the damage). Even without expert testimony, therefore, the court concluded that the record reflected circumstantial evidence sufficient to aid the jury in determining the cause of loss.

II. Genuine Issues of Material Fact Remained for the Jury.

The court held that genuine issues of material fact remained for the jury regarding the cause of the tile and wall damage and the amount of damages. Dover Shores Shell, Inc. v. Scottsdale Ins. Co., No. 6:22-CV-167-PGB-DCI, 2023 WL 5566516, at *4 (M.D. Fla. July 26, 2023) (denying summary judgment in an insurance coverage dispute when questions of causation existed); Burgess v. Allstate Ins. Co., 334 F. Supp. 2d 1351, 1363 (N.D. Ga. 2003) (finding a genuine issue of material fact existed regarding insurance coverage when another instance of water damage was deemed covered and the insurance adjuster’s inspection was very limited and cursory).

Specifically, said the court, the parties dispute whether the pipe leak caused certain tile and wall damage, the location and number of broken tiles, and the amount of damages.

The insurance company grossly mischaracterized the record, wrote the court, by arguing that there is no evidence of causation and that the “only witness disclosed has been the public adjuster, Sigelfrido Rojas.”

Curiously, said the court, despite arguing a lack of evidence, the insurance company attached the deposition transcript of Belkys Henriquez (“Henriquez”), the insured’s corporate representative, to its statement of undisputed facts. Henriquez was the manager of the insured, who had personal knowledge of the “loss, reporting of the loss, claim facts, and damages to the insured property.” Henriquez testified in her deposition that she took pictures of the leak and was the person who discovered the damage. There was other evidence in the record, including: the October 8, 2021 coverage letter; the July 1, 2021 coverage letter; the May 5, 2021 Brandon Bembinster report; the Affidavit of Brandon Bembinster, AIC, AINS; and the PA’s April 26, 2021 estimate. The Court assumed that the insurance company’s argument that no evidence exists regarding causation is based on its unpersuasive legal position that an expert is required to determine causation. The Court stated it would be remiss not to mention that a good portion of the insurance company’s undisputed facts were immaterial to the court’s summary judgment determination, as they appeared to be an effort to disqualify the PA as a purported expert.

Since there were existing genuine issues of material fact, concluded the court, summary judgment was denied.

In settling 414 of these first-party insurance cases the past seven years, I have often faced Daubert motions to strike the public adjuster, arguing that he is not an expert. I have never lost on this argument. The public adjuster is clearly an expert on the issue of damages–the price and scope of repairs that are needed. But what’s more, public adjusters have expertise in causation too. The Florida Statute and regulations governing public adjusters admit as much. They state that one of the duties of a public adjuster is to opine on the amount of the “covered” damages. That means the public adjuster has to make a qualitative determination of causation. For example, in a windstorm case, the “covered” damages are only those caused by the weather event in question. Damages that are pre-existing or caused by “longterm wear and tear” or “inadequate maintenance” are not covered. By writing an estimate, the public adjuster–and the insurance company’s field adjuster, by the way–make a qualitative determination of what damages are “covered” by the alleged cause of loss at issue. They do not simply write an estimate addressing everything a property might need to look brand new again. (Some public adjusters are accused of basically doing that, but that is not what they are legally supposed to do.)

The frustrating thing to me–and it is frustrating because I keep having to work very hard to get judges to understand this at Daubert hearings–is that the insurance companies have already admitted, in every single case, that their Daubert motion against my public adjuster should be denied. Why do I say that? In every single case, the insurance company made its coverage determination based on the opinions of its field adjuster (“independent adjuster”) who inspected the property and has the exact same qualifications as the public adjuster. Both adjusters have the same license to be insurance adjusters. One works for the insurance company and the other works for the insured. In almost every case, the insurance company has made its coverage determination–often to deny the claim entirely while asserting that all of the damages are caused by longterm wear and tear, not the one-time weather event or plumbing leak in question–by using only one inspection by their field adjuster, without using an engineer. Both the insurance company’s field adjuster and the insured’s public adjuster have the same qualifications. (Actually, some adjusters might be more experienced or intelligent than others, but essentially they have the same education and credentials to get their insurance adjuster license.) So the insurance company thinks it can use a mere adjuster (not an engineer) to make decisions on causation (whether damages are “covered” by the alleged cause of loss), while arguing that the insured’s public adjuster, with the same qualifications or lack thereof, cannot.

Over the past 7.5 years handling these insurance cases, I have deposed approximately 300 field adjusters in cases where the insurance company had denied my client’s claim, asserting the defenses of “longterm wear and tear,” “inadequate maintenance,” “improper installation,” and/or “constant and repeated seepage.” Again, when they deny a claim, with very few exceptions, the insurance company has made its decision based on the opinions of the field adjuster. No other person has inspected the property on behalf of the insurance company. Obviously the field adjuster is giving qualitative opinions on causation, not merely documenting all of the damages a property has.

I always ask the field adjuster–and the insurance company’s corporate representative when I depose him–whether the field adjuster gave an opinion to the insurance company on causation. It is obvious that the field adjusters are coached; they often try very hard to do what they think is protecting the insurance company. Most of them deny that they give an opinion on coverage (causation), even though we know they do write a narrative report that gives a coverage opinion. Even though, of course, the field adjuster is not the final decision maker, the real-world truth is that the insurance company generally adopts the field adjuster’s opinion. Determining whether a claim is covered is a determination of causation–were the damages in question caused by the weather event or plumbing leak in question on the alleged date of loss, during the one-time catastrophic event (meaning there is coverage), or are the damages in question caused by longterm wear and tear?

Every home has some wear and tear–unless it is brand new, I guess. The causation issue is whether damages being claimed were caused by the alleged event being claimed by the insured. As a “law nerd” type of lawyer, I find this issue to be intellectually interesting. I am talking about legal issues–causation and expert testimony–that I would not expect an insurance adjuster to understand. The way I ask the question to field adjuster is by breaking it down into simple facts: “When you were at the property, did you go around and document every single bit of damages you see, or did you include in your estimate only those damages you felt were caused by the hurricane?” The answer, obviously, is the latter. The adjuster does not write up every single thing–every scratch on the wall–that a house might need to look brand new again. The adjuster is making a qualitative determination on causation.

Both the insurance company’s adjuster and the insured’s public adjuster do the same thing. They simply reach different conclusions. It has taken me some effort to get some judges to understand this: the field adjuster is an “expert” who can give opinion testimony under rule 702, too. I’ll give them that. My beef is when insurance company’s rely solely on their field adjuster for all of their factual information and causation opinions, while simultaneously filing a motion to strike the public adjuster who did the same thing and has the same qualifications (or lack thereof) and simply reached a different opinion about which damages are covered.

What should happen in these cases is that both parties list their adjuster as a non-retained (hybrid) expert. Daubert motions against these adjusters should not be granted (or even filed), cases should go to a jury, there is a “battle of the experts,” and the jury decides which expert is more correct.