Key Points
- The Fifth Circuit affirmed the striking of a homeowners' expert report and repair estimate that their designated expert co-wrote with a colleague who was never designated as an expert.
- The panel held that joint expert reports must clearly delineate the opinions attributable to each expert, and the Cains' reports did not say which opinions were Fee's and which were Irmiter's.
- The panel held that the defect went to admissibility, not weight, and did not decide whether the March 2025 estimate was untimely or whether Fee's testimony was reliable under Daubert.
- Without expert testimony, the Cains had no admissible evidence of causation or damages, and their bad-faith claims failed because Mississippi law requires an underlying breach of contract.
- The opinion is per curiam and not designated for publication under Fifth Circuit Rule 47.5.
A federal appeals court on Oct. 16 upheld the dismissal of a couple's lawsuit against State Farm over a tree that fell on their house, ruling that the trial court properly threw out their expert report because their designated expert and a co-author from the same firm wrote it together without saying which opinions belonged to the designated expert.
A U.S. Court of Appeals for the Fifth Circuit panel of Circuit Judges Jones, Southwick and Duncan affirmed summary judgment for State Farm Fire and Casualty Company in an unsigned per curiam opinion. Without the report and a companion repair estimate, the panel held, Dustin and Amanda Cain had no admissible evidence of what caused the damage to their home or what repairs would cost.
The decision applies Federal Rule of Civil Procedure 26, which requires a testifying expert's written report to contain "a complete statement of all the opinions the witness will express and the basis and reasons for them." The panel held that a jointly written report fails that requirement when it does not identify which opinions belong to the designated expert, and that the defect goes to whether the testimony is admissible at all.
The tree fell on the Cains' home on Aug. 27, 2022. State Farm attributed only a puncture in the roof to the tree and blamed other damage on "long term thermal contraction and expansion, deferred maintenance, and long-term settlement," which the policy did not cover. It paid the Cains $10,042.90 that year.
The Cains then obtained an engineer's report and a contractor's estimate putting the tree damage to their home, swimming pool and concrete at $95,896.07. State Farm reinspected and paid another $3,130.08 but maintained that the tree had damaged only the roof. The Cains sued on June 6, 2024, claiming $134,994.54 for breach of contract, breach of good faith and fair dealing, and other relief.
On Dec. 6, 2024, their deadline to name experts, the Cains designated one expert, Sean Fee of Forensic Building Science. His report listed a co-author, Jim Irmiter of the same firm, and stated that both men "contributed to, reviewed, and concur with the content" of the evaluation. The report made repair recommendations but said nothing about repair costs.
On March 4, 2025, the last day of discovery, the Cains added an estimate, also written by Fee and Irmiter, claiming $149,325.66 in repair costs, without seeking leave of court.
State Farm moved to strike Fee's testimony and for summary judgment. The insurer argued that it could not distinguish Fee's opinions from Irmiter's and that Fee could not offer expert testimony on Irmiter's opinions. It also challenged the estimate as untimely.
The U.S. District Court for the Southern District of Mississippi granted the motion on July 24, 2025. Because the court could not determine who was responsible for the opinions, it held that State Farm and the court were both unable to test the reliability of the report's data or Fee's methods. The court then granted summary judgment and later denied the Cains' post-judgment motions.
On appeal, the Cains argued that the two men had "contributed to, reviewed, and concur[red] with the content," thereby "provid[ing] the same unified opinion." They cited what the panel called "various non-binding decisions" that, they said, permit jointly authored expert reports.
The panel disagreed. "To be sure, an expert may rely on facts or data from others in forming an opinion, but the opinion must be his own," the court wrote.
At most, the panel wrote, the Cains' authorities show that multiple designated experts "may sometimes jointly prepare a single report." "But these cases also teach that joint reports must clearly delineate the opinions attributable to each expert," the court continued. "Here, the proposed reports failed to delineate which opinions were Fee's and which were Irmiter's. And, on top of that, only Fee was designated as an expert, not Irmiter."
Even setting aside that Irmiter was never designated, the panel wrote, the record showed at most that both men had "contributed to, reviewed, and concur[red] with the content" of the reports. The district court therefore acted within its discretion, the panel held, in finding that the reports did not make clear what work Fee had done, which opinions he held or what supported them.
The panel also rejected the Cains' effort to distinguish Hebbler v. State Farm Fire & Casualty Co., a 2024 trial-court decision in which, the Cains said, the report was prepared by "unknown individuals." The Cains pointed out that their report named Irmiter. The panel called the cases analogous, writing that "Fee's report was struck because it failed to provide any basis for distinguishing Fee's opinions and analysis from Irmiter's."
The court likewise rejected the argument that the flaws went only to the weight of Fee's testimony. "Before expert testimony may be subjected to the adversarial process, it must first be admissible," the panel wrote. "Here, the admissibility of the proposed expert reports was the issue, not their weight." Having ruled on that ground, the panel did not decide whether the estimate was untimely or whether Fee's testimony was reliable under the Supreme Court's 1993 decision in Daubert.
The Cains conceded that without the estimate and Fee's testimony they "cannot prove the damages being sought in their case." The panel wrote that "Expert testimony is required to prove causation where, as here, the plaintiff's claim turns on details of property damage that require specialized knowledge in construction or repairs."
The Cains argued that their extra-contractual claims, including claims for delayed payment and punitive damages, survived regardless. "Under Mississippi law, a bad-faith insurance claim requires an underlying breach of contract," the panel responded, holding that the district court correctly dismissed all of the Cains' claims.
The panel also upheld the denial of the Cains' post-judgment motions, writing that they failed to explain how their motion identified any "manifest errors of law or fact" or "newly discovered evidence." The Fifth Circuit affirmed the district court's judgment in full, leaving in place the dismissal of the Cains' suit with prejudice.