govinfo:USCOURTS-moed-4_23-cv-00830-8

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UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MISSOURI 
EASTERN DIVISION 
BRENDA HILLMAN, ET AL., ) 
) 
 
 Plaintiff, )  
     v. ) Case No. 4:23-cv-00830-SEP 
 )          
GREE USA, INC., ET AL., )  
 )  
 Defendants. )  
MEMORANDUM AND ORDER 
Before the Court is Plaintiffs’ motion seeking exclusion of Defendants’ expert Steven 
Weitz.  See Doc. [190].  For the reasons set forth below, the motion is granted. 
FACTS AND BACKGROUND 
 In this products liability case, Plaintiffs allege that a defective dehumidifier produced by 
Defendants caused the fire that killed Kenneth and Phyllis Zerr.  Defendants seek to call an 
insurance adjuster, Steven Weitz, to testify as to the value of the home, and its contents, before 
and after the fire.  Doc. [190-3].  Plaintiffs move to exclude his testimony. 
LEGAL STANDARD 
Rule 702 of the Federal Rules of Evidence provides:   
A witness who is qualified as an expert by knowledge, skill, experience, training, 
or education may testify in the form of an opinion or otherwise if the proponent 
demonstrates to the court that it is more likely than not that:   
(a) the expert’s scientific, technical, or other specialized knowledge will help the 
trier of fact to understand the evidence or to determine a fact in issue;  
(b) the testimony is based on sufficient facts or data;  
(c) the testimony is the product of reliable principles and methods; and  
(d) the expert’s opinion reflects a reliable application of the principles and 
methods to the facts of the case. 
Under Rule 702, the trial court has gatekeeping responsibility to “ensur[e] that an expert’s 
testimony both rests on a reliable foundation and is relevant to the task at hand.”  Kumho Tire 
Co. v. Carmichael, 526 U.S. 137, 141 (1999) (quoting Daubert v. Merrell Dow Pharms., Inc., 
509 U.S. 579, 597 (1993)).   
The United States Supreme Court recently amended Rule 702 to “clarify and emphasize” 
that a “preponderance of the evidence standard” applies to the admissibility of expert testimony.  
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Fed. R. Evid. 702 advisory committee’s note to 2023 amendment.  “[E]xpert testimony may not 
be admitted unless the proponent demonstrates to the court that it is more likely than not that the 
proffered testimony meets the admissibility requirements set forth in the rule.”  Id.   
“Proposed testimony must be supported by appropriate validation—i.e., ‘ good grounds,’ 
based on what is known.”  Daubert, 509 U.S. at 590.  But Rule 702 “is one of admissibility 
rather than exclusion.”  Shuck v. CNH Am., LLC, 498 F.3d 868, 874 (8th Cir. 2007).  “[D]oubts 
regarding whether an expert’s testimony will be useful should generally be resolved in favor of 
admissibility.”  Clark v. Heidrick, 150 F.3d 912, 915 (8th Cir. 1998) (citation modified).  
“Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the 
burden of proof are the traditional and appropriate means of attacking shaky but admissible 
evidence.”  Olson v. Ford Motor Co., 481 F.3d 619, 626 (8th Cir. 2007).    
DISCUSSION 
Weitz “is a licensed independent adjuster and has in excess of 30 years of experience.”  
Doc. [190-3] at 2.  Defendants retained Weitz to evaluate the damage caused by the fire to the 
house and its contents.  Id.  Plaintiffs do not challenge Weitz’s credentials.  Rather, they argue 
Weitz’s opinion should be excluded because he evaluated the “actual cash value” of the home 
and its contents, where Missouri law requires damages to be assessed using the “fair market 
value” of the property before and after the fire.  Doc. [190-1] at 4.   
Missouri Approved Jury Instruction (MAI) 4.02 instructs Missouri juries to award 
damages for property damage by evaluating: 
the difference between the fair market value of the [property] before it was 
damaged and its fair market value after it was damaged, plus such sum as you 
may find from the evidence will fairly and justly compensate plaintiff for the loss 
of use thereof during the time reasonably necessary for the property to be repaired 
or replaced.  
And MAI 16.02 defines “fair market value” as “[t]he price that the property in question would 
bring when offered for sale by one willing but not obliged to sell it and when bought by one 
willing or desirous to purchase it but who is not compelled to do so.”   
Defendants do not deny that MAI 16.02’s definition of “fair market value” applies to the 
assessment of property damage in this case.  See Doc. [240] at 4 (quoting MAI 16.02).  They 
contend that Weitz “employed the same standard when performing his expert evaluation of the 
property’s value immediately before the incident.”  Id.  The trouble for Defendants is that Weitz 
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himself does not describe his opinion as an evaluation of the property’s fair market value.  
Rather, in his deposition, he defines the “actual cash value” he determined as “replacement cost 
less depreciation,” Doc. [190-5] at 45, and he specifically disclaims having performed a 
“diminution in market value appraisal,” id. at 44.   
The question before the Court, then, is whether Defendants have shown that that it is 
more likely than not that Weitz’s “replacement cost less depreciation” testimony would “help the 
trier of fact to . . . to determine” the property’s “fair market value” as defined in MAI 16.02.  
Having carefully reviewed Defendants’ opposition and the case law cited therein, the Court finds 
that they have not. 
 Under Missouri law, the “general rule for damage to real or personal property is the 
diminution in value test, i.e., the difference between the fair market value before and after the 
event causing the damage.”  Tull v. Housing Authority of City of Columbia, 691 S.W.2d 940, 942 
(Mo. Ct. App. 1985) (citing City of Kennett v. Akers, 564 S.W.2d 41, 50 (Mo. banc 1978); 
Groves v. State Farm Mutual Auto Ins. Co., 540 S.W.2d 39, 43 (Mo. banc 1976); DeLisle v. 
Cape Mutual Ins. Co., 675 S.W.2d 97 (Mo. Ct. App. 1984); Lustig v. U.M.C. Industries, Inc., 
637 S.W.2d 55, 58 (Mo. Ct. App. 1982); DeArmon v. City of St. Louis, 525 S.W.2d 795, 800 
(Mo. Ct. App. 1975)).  There is one acknowledged exception to that general rule:  “[T]he cost of 
repair test which may be used when the property can be restored to its former condition at a cost 
less than the diminution in value.”  Id. (citing DeLisle, 675 S.W.2d at 103).  Traditionally, the 
cost-of-repair exception applies “only where the amount of damage is insignificant as compared 
to the value of the property,” and the general test is used “without hesitation in circumstances 
that suggest a very high restoration cost.”  DeArmon, 525 S.W.2d at 800.  Defendants have 
pointed to no case like this one—and t he Court has located none—in which “replacement cost 
minus depreciation” has been cited as an equivalent or exception to the “general rule.” 
Missouri law does explicitly provide for the use of replacement cost less depreciation in 
determining fair market value in some other contexts.  See Boss v. Travelers Home & Marine 
Ins. Co., 2016 WL 3983833, at *6 (W.D. Mo. July 25, 2016) (“. . . Missouri law uses different 
methods for valuing property in a variety of contexts . . . .”); see, e.g., Land Clearance for 
Redevelopment Authority of City of St. Louis v. Henderson, 358 S.W.3d 145, 154-55 (Mo. Ct. 
App. 2011) (discussing “fair market value” in condemnation action); Quincy Soybean Co., Inc. v. 
Lowe, 773 S.W.2d 503, 504 (Mo. Ct. App. 1989) (same, taxation); Pannell v. Missouri Ins. 
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Guaranty Ass’n, 595 S.W.2d 378, 354 (Mo. Ct. App. 1980) (same, insurance); see also Mo. Rev. 
Stat. § 523.001 (defining “fair market value” as “the value of the property taken after considering 
comparable sales in the area, capitalization of income, and replacement cost less depreciation, 
singularly or in combination” for the purposes of condemnation proceedings); MAI 9.01, 9.02 
(“In determining fair market value of defendant’s property, you may consider evidence of the 
value of the property including [comparable sales, capitalization of income, replacement cost less 
depreciation] . . .”).  But the Court has not found any case drawing a connection between 
“replacement cost less depreciation” and what MAI 16.02 instructs.  Nor has it found any case 
that explicitly denies such a connection.    
Lacking definitive authority from either party, the Court returns to the burden of proof.  It 
is Defendants’ burden to show that Weitz’s testimony is more-likely-than-not to be admissible 
under Rule 702.  But Defendants produce no statute, jury instruction, or case law suggesting that 
testimony about “replacement cost less depreciation” will help the jury determine “fair market 
value” as defined in MAI 16.02.  They cite cases from distinctly different contexts, in which 
courts have interpreted “actual cash value” as “fair market value,” not where courts have allowed 
parties to establish “fair market value” by presenting evidence of “replacement cost less 
depreciation,” as Defendants propose.  See Doc. [240] at 3-5.  And they make the specious claim 
that Weitz “employed the same standard” as MAI 16.02, citing two parts of his report that relate 
to his valuation of the contents of the Zerr’s home, not the structure.  Doc. [240] at 2, 4 (quoting 
Doc. [190-4] at 4, 6).  Mischaracterization of the expert’s report is not a strong foundation for an 
argument. 
Because Defendants have failed to establish the admissibility of Weitz’s testimony under 
Rule 702 by a preponderance of the evidence,  
IT IS HEREBY ORDERED that Plaintiffs’ Motion to Exclude the Expert Testimony of 
Steven Weitz, Doc. [190], is GRANTED. 
Dated this 26th day of May, 2026.   
     
  SARAH E. PITLYK 
  UNITED STATES DISTRICT JUDGE 
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