1 

IN THE UNITED STATES DISTRICT COURT FOR THE 

MIDDLE DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

 

NICHOLAS STRICKLAND, et al., * 

 * 

 Plaintiffs, * 

 * 

v. * Case Number: 1:06-CV-00682-TFM 

 * 

CHAMPION HOME BUILDERS CO., 

INC., et al., 

*

* 

 

 * 

 Defendants. * 

CHAMPION HOME BUILDERS CO.’S MOTION TO EXCLUDE 

TESTIMONY AND OPINIONS OF PLAINTIFFS’ EXPERT 

ROBERT KONDNER AND REQUEST FOR IN LIMINE HEARING

COMES NOW, the defendant, Champion Home Builders, Co., (referred to herein as 

“CHB” or “Defendant”) and hereby move this Court to exclude under Daubert v. Merrill Dow 

Pharmaceuticals, 509 U.S. 579 (1992), and Fed. R. Evid. 702, the expert testimony of Plaintiff’s 

proposed expert Robert Kondner (“Kondner”). Pursuant to Fed. R. Evid. 104, CHB requests a 

hearing on this motion. As grounds for this motion, CHB states as follows: 

INTRODUCTION

Robert Kondner (“Kondner”) has been named as an expert in this matter at one time. It is 

unclear as to whether the plaintiffs intend to rely on his testimony as no deposition has been 

taken and indications have been made that he will not be used as an expert in this matter. 

However, plaintiffs Nicholas and Jennifer Strickland (collectively referred to herein as “the 

Stricklands” or “Plaintiffs”) did produce an expert report from Kondner in this matter. This 

report may have been produced by accident as his report references an incorrect address for the 

Stricklands’ home. (Kondner Report, p. 6, attached hereto as Exhibit B). In any event, based on 

recent testimony set forth below, Kondner appears to just have one report for all of the cases in 

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which he is involved: “Other than your last paragraph and the names and the dates, your reports 

are virtually identical one to the other, right? A. Pretty much so.” Kondner Deposition in 

Murphy, attached hereto as Exhibit A, 147:7-10. In an abundance of caution the instant motion 

is before the Court. 

This lawsuit is one among dozens of individual and class action cases that have recently 

been brought before state and federal courts in Alabama, Louisiana, and Texas. In these actions, 

plaintiffs claim that manufactured homes sold in certain coastal and inland regions from Texas to 

North Carolina1 are defective because the exterior walls of such homes are constructed with 

interior vapor barriers. 

The Stricklands purchased a new CHB manufactured home in March 2003. (Compl. ¶ 6). 

The Stricklands allege that the home has defectively designed and constructed exterior walls. Id. 

at ¶ 13. 

The two sections of the HUD Code primarily at issue in this lawsuit are Sections 303(b) 

and 504(b). Section 303(b) provides that “All construction methods shall be in conformance 

with accepted engineering practices to insure durable, livable, and safe housing and shall 

demonstrate acceptable workmanship reflecting journeyman quality of work of the various 

trades.” 24 C.F.R. § 3280.303(b). Section 504(b) governs condensation control in the exterior 

walls of manufactured homes, and provides for four expressly allowed wall designs. 24 C.F.R. § 

3280.504(b). One of the design options specifically allowed by § 504(b) is to construct the walls 

with a vapor barrier of 1 perm2

 or less on the living space side of the wall. Id. at § 504(b)(1). It 

 

1

 These areas are known as the “humid and fringe zone climates.” The counties included in these regions were 

identified in the Federal Register at 67 F.R. 20402-20403 (April 24, 2002), and are now listed in 24 C.F.R. § 

3280.504(b)(4). 

2

 Permeance is the measure of the amount of water vapor (moisture) that can pass through a specified material in a 

certain amount of time. The measure and degree of permeability is expressed in units referred to as ‘perms.’ 

Case 1:06-cv-00682-TFM Document 66 Filed 03/28/2008 Page 2 of 18
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was this design option that CHB used in the Stricklands’ home, constructing the walls with 

vinyl-covered gypsum wallboard containing an interior (i.e. on the living side of the wall) vapor 

barrier with a permeability rating of less than one. 

The Stricklands base their claims for liability primarily on the opinions and reports of 

three specially-retained “expert” witnesses: Bobby Parks, Robert Kondner, and Roy Bonney.3

 

Kondner concludes without actually inspecting the Stricklands’ home that the wall design 

violates HUD Code § 303(b) and that the exterior walls in the Stricklands’ home suffer from 

fungal growth and structural deterioration as a result. See Kondner Report, Exhibit B, p. 6. 

These opinions must be stringently evaluated by this Court in its capacity as a gatekeeper under 

Daubert and Rule 702. 

SUMMARY OF ARGUMENT

 Kondner’s testimony and opinions should be excluded because he cannot satisfy the 

requirements for the admissibility of expert testimony under Rule 702 and Daubert. He has no 

experience with engineering design in the manufactured housing industry and has never even 

seen a manufactured home built in a HUD Code setting. (Kondner Deposition in Ford v. 

Champion Enters., Inc., attached hereto as Exhibit C, 10:16-11:5.) He lacks familiarity with 

many basic principles and provisions of the HUD Code, and cannot even claim to have read all 

of the Code provisions at issue. Id. at 27:3-13. He does not claim to be an expert, nor does he 

claim to have any experience, in the areas of HVAC, mold analysis or interpretation, moisture 

 Materials with high perm levels will allow more moisture or water vapor to pass through than those with lower perm 

values. 

3

 Parks performed two inspections of the Strickland home and concluded that the wall design violates the HUD 

Code Section 303(b) standards for accepted engineering practices and that the exterior walls in the Strickland home 

suffer from extreme moisture, fungal growth, and structural deterioration as a result. Parks is the subject of a 

separate Daubert motion that will be referenced frequently in this motion because Kondner’s opinions are based 

almost entirely on Parks’ unqualified and unreliable opinions. Bonney is offered exclusively for determining the 

cost involved in replacing any wallboard portions that are found to be defective. As a result, Bonney’s testimony is 

not relevant to the issue of liability and is only relevant to damages in the event liability is found. 

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meters, thermographic imaging, or gypsum. Id. at 12:1-13, 33:7-8, 92:15-17, 93:4-10, Exhibit A 

27:12-14, 131:21-23, 152:20-22. As a result, Kondner is not qualified to offer opinions in any of 

these areas. 

In addition, Kondner did not rely on sufficient facts or data in his investigation. First and 

foremost, Kondner has never even visited, much less inspected, the Stricklands’ home, nor has 

he conducted any independent research into the performance of the Stricklands’ exterior walls. 

(Exhibit A 13:14-17). Instead, he relies entirely on the unreliable and unsupported conclusions 

of HVAC repairman Bobby Parks.4 Id. at 14:10-12, 18:20-19:3, 48:17-21. Kondner also ignores 

the plain language of the HUD Code (and HUD’s own interpretation of it) by offering the 

opinion that the wall design of the Stricklands’ home violates the HUD Code. This is a 

remarkable opinion because this wall design is specifically approved for all regions by the HUD 

Code. In short, Kondner’s qualifications and the factual basis for his contentions are entirely 

inadequate. 

Finally, even if Kondner were to have the necessary qualifications (which he does not), 

and even if Kondner were to base his opinions on sufficient facts (which he does not), his 

testimony still must be excluded because it is cumulative and duplicative of Parks’ proposed 

testimony. Kondner’s conclusions are exactly the same as Parks’, and because Kondner 

conducted no independent research or analysis, the conclusions are based on the same data 

collected by Parks. Id. at 14:10-12, 18:20-19:3, 48:17-21. The only reason Kondner may be 

called is to use an engineer to try to bolster the credibility of HVAC repairman Bobby Parks’ 

unqualified and unsupported opinions regarding the design, Code compliance and performance 

of the Stricklands’ walls. 

 

4

 CHB hereby adopts by reference and incorporates into this motion all arguments regarding Parks’ qualifications, 

methodology, and conclusions contained in CHB’s separately filed Daubert motion to exclude Parks’ testimony and 

opinions. 

Case 1:06-cv-00682-TFM Document 66 Filed 03/28/2008 Page 4 of 18
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For all of these reasons, CHB respectfully requests that this Court exclude the testimony 

and opinions of proposed ‘expert’ Robert Kondner. 

STANDARD FOR ADMITTING EXPERT TESTIMONY

Federal Rule of Evidence 702 governs the use of expert testimony. Rule 702 provides: 

If scientific, technical, or other specialized knowledge will assist 

the trier of fact to understand the evidence or to determine a fact in 

issue, a witness qualified as an expert by knowledge, skill, 

experience, training, or education, may testify thereto 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. 

Fed. R. Evid. 702. 

The Supreme Court has instructed the district courts to act as “gatekeepers” in screening 

expert testimony. See General Electric v. Joiner, 522 U.S. 136, 140 (1997) (upholding a district 

court decision to exclude expert testimony on the ground that it “did not rise above ‘subjective 

belief or unsupported speculation’”); Club Car, Inc. v. Club Car (Quebec) Import, Inc., 362 F.3d 

775, 780 (11th Cir. 2004) (affirming district court’s exclusion of accountant’s lost profit 

calculations on the grounds that it “was based on flawed methodology that was unaccepted in the 

accounting community”); KW Plastics v. U.S. Can Co., 131 F. Supp. 2d 1289, 1294 (M.D. Ala. 

2001) (motion to exclude expert’s testimony on damages granted on the grounds that the 

“cumulative effect of [the expert’s] methodological errors render[ed] the lost profits calculations 

speculative, without foundation, and with an unknown error rate” and therefore, “the calculations 

[fell] outside of the range where experts may reasonably differ.”); Benkwith v. Matrixx 

Initiatives, Inc., 467 F. Supp. 2d 1316, 1332 (M.D. Ala. 2006) (opinion by J. Fuller) (excluding 

the proposed expert testimony of a doctor in a product liability action against a nasal spray 

Case 1:06-cv-00682-TFM Document 66 Filed 03/28/2008 Page 5 of 18
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manufacturer and distributor because the expert did not “employ[] in the courtroom the same 

level of intellectual rigor that characterizes the practice of an expert in the relevant field”). 

In this case, the Stricklands bear the burden of proof as to the factual basis for Kondner’s 

qualifications and conclusions. See McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256 

(11th Cir. 2002); Allison, 184 F.3d at 1306 (the “burden of laying the proper foundation for the 

admission of the expert testimony is on the party offering the expert, and admissibility must be 

shown by a preponderance of the evidence.”). As detailed below, the Stricklands cannot carry 

this burden. 

ARGUMENT

 The testimony and opinions of Robert Kondner should be excluded because Kondner is 

not qualified as an expert in the design of manufactured housing or the interpretation of the HUD 

Code. Furthermore, Kondner relies on insufficient and inaccurate facts and data to reach his 

conclusions. Finally, Kondner’s testimony is cumulative and must be excluded under Rule 403. 

I. Kondner Is Not Qualified to Testify to These Matters 

Kondner proposes to testify that the exterior walls in the Stricklands’ home are designed 

improperly, do not comply with HUD Code regulations, and are suffering from structural 

deterioration and fungal growth as a result of excess moisture accumulation. See Exhibit B, p. 6. 

Kondner, however, even by his own admission, is unqualified to testify as an expert about these 

matters: 

Q. You’re not a HUD Code expert? 

A. That’s correct. 

Q. You’re not a mold expert? 

A. That’s correct. 

Q. You’re not a gypsum expert? 

A. That’s correct. 

Q. And you’re not a thermographic imaging expert? 

A. That’s correct. 

Case 1:06-cv-00682-TFM Document 66 Filed 03/28/2008 Page 6 of 18
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Q. You’ve never designed a wall system in a HUD Code home in your life? 

A. That’s correct. 

... 

Q. Are you an expert in moisture meters? 

A. No, I’m not. 

Exhibit C 12:1-13:1, 33:7-8. 

 

A. Kondner Is Not Qualified to Offer Design Opinions 

To be sufficiently qualified to testify as an expert, a witness must have the knowledge, 

skill, training and education in the subject for which his testimony is offered. Fed. R. Evid. 702; 

Maiz v. Virani, 253 F.3d 641, 644 (11th Cir. 2001) (proponent’s first burden is to show that its 

proposed expert is “qualified to testify competently regarding the matters he intends to 

address.”). Whatever general experience Kondner may have as an engineer, it does not qualify 

him to testify about design issues with the wall construction in manufactured housing. See Tokio 

Marine & Fire Ins. Co. v. Grove Mfg. Co., 762 F. Supp. 1016 (D.P.R. 1991) (holding that a civil 

engineer was not competent to testify as to crane design issues because he had no experience 

with the design or manufacturing of cranes; a mechanical engineer would be better suited to 

testify); Perkins v. Volkswagen of America, Inc., 596 F.2d 681 (5th Cir. 1979) (upheld a lower 

court ruling that a mechanical engineer with no experience designing automobiles was not 

competent to testify as to design issues); Hoban v. Grumman, Corp., 717 F. Supp. 1129 (E.D. 

Va. 1989) (holding that a licensed professional engineer with degrees in electrical and 

mechanical engineering who had done no aerodynamic design work or engine design work was 

not competent to testify on such design issues). 

In this case, Kondner has no design experience in the manufactured housing or wall 

construction field: 

Q. Have you ever rendered a design opinion as to manufacturing standards in a 

manufactured home? 

Case 1:06-cv-00682-TFM Document 66 Filed 03/28/2008 Page 7 of 18
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A. I don't think so. Could be. I've been around a long time. 

... 

Q. I think you've testified previously you don't have any experience in the 

manufacturing housing industry itself, do you? 

A. Manufactured housing? Well, not trailers, no. I don't think so. 

Exhibit A 88:10-89:2. Furthermore, Kondner admits that he has never even seen a manufactured 

home constructed in a factory setting, and he does not know how long it takes to build one. 

Exhibit C 10:16-11:5. Pursuant to Tokio Marine, Perkins, and Hoban, then, Kondner is not 

competent to testify as to design issues in an unfamiliar field. 

B. Kondner Is Not Qualified to Offer Opinions Regarding HUD Code 

Compliance 

Kondner’s deposition testimony and conclusions display a fundamental lack of 

familiarity with, and misunderstanding of, the HUD Code. As discussed supra, HUD Code 

Section 504(b) governs condensation control in the exterior walls of manufactured homes and 

expressly allows four different wall construction designs. Kondner claims that CHB’s 

application of § 504(b) to the Stricklands’ home provides the primary basis for liability in this 

case, yet Kondner is not even familiar with the basic design principles employed by § 504(b). In 

addition to Kondner’s own admission that he is not an expert in the HUD Code, his lack of 

knowledge about the Code is evident from Kondner’s inability to even identify the four 

construction methods expressly allowed by the HUD Code, much less describe in detail how to 

design them. See Exhibit A 45:22-46:13. 

Kondner’s testimony raises serious doubt as to whether Kondner has ever even read the 

relevant provisions of the Code, much less understands them at an expert level: 

Q. Do you have any idea where the waiver actually is? 

A. Where the waiver of what is? Oh, in this code? 

Case 1:06-cv-00682-TFM Document 66 Filed 03/28/2008 Page 8 of 18
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Q. The wall design waiver; have you ever read it? 

A. It would have to be back in 504. Let's go back to 504. 

Q. Doctor, it's not in there. Have you ever read it? 

A. I don't know whether I ever have or not. 

Exhibit C 27:3-13. Kondner devotes more than one-fifth of his entire written report to this 

waiver, describing it in detail and rendering opinions on it that he claims to have reached on his 

own, yet he cannot even identify where it is in the Code, or that he has even read it. See Exhibit 

B. 

Furthermore, as explained below, Kondner does not understand how various provisions 

of the HUD Code relate to each other, as evidenced by his opinion that a wall construction 

method can violate § 303(b),5

 a general performance standard, even though it meets the 

requirements of Section 504(b), a specific prescriptive standard. Exhibit A 42:2-6. 

HUD develops its safety standards for the Code through a consensus process that relies 

on professionals with engineering expertise who provide conclusive technical documentation on 

issues to establish sound engineering practices. Declaration of David Tompos, P.E., Exhibit D ¶ 

7. As a result, the Code embodies sound engineering practices, and meeting the specific 

requirements of this Code that is developed in this manner therefore conforms to sound and 

accepted engineering practices. Id. 

Section 504(b) of the Code allows for four alternative designs for exterior walls in mobile 

homes: 1) walls with an interior vapor barrier of one perm or less, or 2) unventilated wall cavities 

sealed by a pressure envelope of at least five perms, or 3) ventilated wall cavities, or 4) for 

 

5

 As mentioned supra, Section 303(b) provides that “All construction methods shall be in conformance with 

accepted engineering practices to insure durable, livable, and safe housing and shall demonstrate acceptable 

workmanship reflecting journeyman quality of work of the various trades.” 24 C.F.R. § 3280.303(b). 

Case 1:06-cv-00682-TFM Document 66 Filed 03/28/2008 Page 9 of 18
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homes in Zone 1,6 a vapor barrier may be placed on the opposite side of the wall from the living 

space. See 24 C.F.R. § 3280.504(b). Each of these alternative construction designs has been 

deemed by HUD to represent good engineering practices. Exhibit D ¶ 8. Nothing in the Code 

prohibits the use of a 504(b)(1) wall construction in Zone 1. See generally 24 C.F.R. § 3280. 

Furthermore, HUD has stated that it does not have data, research, or other information that would 

substantiate restricting § 504(b)(1) to Zones 2 and 3. Exhibit D ¶ 8. Indeed, the wall designs 

utilized in the Stricklands’ home are the most widely used condensation control method in the 

industry for all climactic conditions and have been approved by a third party inspection agency 

comprised of engineer design professionals as required by the HUD regulations. Exhibit D ¶ 9. 

Kondner argues that because Section 303(b) requires all manufactured homes to be built 

in accordance with “accepted engineering practices,” placing an interior vapor barrier in a hot 

and fringe zone climate violates the HUD Code even though Section 504(b)(1) specifies interior 

vapor barriers as an appropriate design option for every climate zone. See 24 C.F.R. at §§ 

3280.303(b), 3280.504(b)(1). Kondner’s opinion fundamentally misrepresents HUD’s own code 

interpretation and its enforcement policy. As HUD has explicitly stated as recently as 2007: 

Consistent with basic principles of administrative law, it is HUD’s practice to 

hold manufacturers accountable for compliance with the standard that most 

specifically applies to a particular aspect of construction. Accordingly, there is no 

case in which HUD has applied 3280.303(b) to a manufacturer that has complied 

with 3280.504(b). 

 

6

 The HUD Code divides the United States into three geographic regions, called ‘thermal zones.’ Zone 1 

encompasses much of the Southeastern U.S. from Texas to North Carolina, Zone 2 extends across the country’s 

midsection from North Carolina to California, and Zone 3 encompasses most of the northern half of the country. 24 

C.F.R. § 3280.506. 

Case 1:06-cv-00682-TFM Document 66 Filed 03/28/2008 Page 10 of 18
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HUD Letter from Assoc. Dep. Asst. Sec. for Reg. Affairs and Mfr’d Housing, January 19, 2007, 

attached hereto as Exhibit E.7

 Based on Kondner’s own admission that he is not a HUD Code expert, as well as his 

statements and opinions exhibiting a fundamental misunderstanding of basic principles contained 

within the HUD Code, Kondner should not be allowed to opine that the Stricklands’ wall 

construction violates the HUD Code. 

C. Kondner Is Not Qualified to Offer Opinions Related to the Interpretation of 

Mold Sampling Data, Moisture Meter Readings, Thermographic Imaging 

Results, and HVAC testing 

Kondner also lacks the qualifications necessary to interpret mold sampling data, moisture 

meter readings, thermographic imaging, and HVAC testing. As noted above, Kondner himself 

admits that he is not a mold expert or a thermographic imaging expert. See supra, Exhibit C 

12:1-13:1. Kondner further admits that he is not an expert in HVAC testing or the standard of 

care for determining moisture content of gypsum: 

Q. Sir, are you an expert on the standard of care with regard to moisture content 

in gypsum? 

A. No, I wouldn’t say I was. 

... 

Q. You’re not an air conditioning / heating ventilation expert, are you? 

A. No, no, no. 

Exhibit A 27:12-14, 152:20-22. Kondner goes on to admit that he has no training whatsoever in 

thermographic imaging. Id. at 131:21-23. He displays his lack of understanding of moisture 

meter readings by stating his belief that they convey the absolute moisture content of gypsum, as 

 

7

 CHB wishes to bring to the attention of the Court that in a separate Memorandum Opinion and Order (Doc. No. 

75) in Murphy, the letter was stricken as it was determined that it did not satisfy one of the hearsay exceptions in 

Rule 803(8). 

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opposed to relative readings. See Id. at 19:19 (“To me, it’s an absolute value.”). This is a crucial 

admission, as even Parks agrees that moisture meter readings are only relative and not absolute. 

See Bobby Parks Deposition 131:20-132:7 attached hereto as Exhibit H. Discussing the HVAC 

system in the Stricklands’ home, Kondner not only admits that he is not an HVAC expert, but 

also that he has no independent expertise with fundamental components of the system at issue: 

Q. You’re not an air conditioning HVAC expert, are you? 

A. No. 

... 

Q. And I think that we established this morning you’re not sure what a positive 

operating system is, correct? 

... 

A Positive operating system? That would be speculation on my part. 

Exhibit C 92:15-17; 93:4-10. 

 Notwithstanding his own admissions that he is not an expert in these fields, Kondner 

proposes to opine that moisture accumulation has caused fungal growth and structural 

deterioration of gypsum wallboard in the Stricklands’ home. Without having expertise in any of 

these areas, however, Kondner’s opinions on these matters are not based on scientific, technical, 

or specialized knowledge as required by Daubert, nor will they “assist the trier of fact to 

understand the evidence or to determine a fact in issue.” See Fed. R. Evid. 702; Daubert, 509 

U.S. 579. Therefore, the Court must exclude Kondner’s testimony and opinions. 

II. Kondner’s Opinions Are Not Based on Sufficient Facts or Data 

In addition to being unqualified as an expert, Kondner failed to rely on sufficient facts or 

data in his investigation. First and foremost, Kondner conducted no independent research into 

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the performance of the Stricklands’ exterior walls. Exhibit A 13:14-17. Instead, he relied almost 

exclusively on the unreliable and unsupported conclusions of Bobby Parks. Id. at 14:10-12, 

18:20-19:3, 48:17-21. In short, Kondner’s conclusions are not supported by the evidence he 

gathered. 

It is well settled law that expert testimony must be “more than belief or unsupported 

speculation.” See Daubert, 509 U.S. at 590. The Eleventh Circuit has likewise held that the 

district court’s role is to “ensure that the proposed expert testimony is ‘relevant to the task at 

hand,’ ... i.e., that it logically advances a material aspect of the proposing party’s case.” Allison 

v. McGhan Med. Corp., 184 F.3d 1300, 1312 (11th Cir. 1999), quoting Daubert (on remand), 43 

F.3d at 1315. Therefore, the evidence must have a valid scientific connection to the disputed 

facts in the case. Daubert, 509 U.S. at 591. This connection has been appropriately 

denominated as “fit.” Id. The Supreme Court has recognized that: 

Conclusions and methodology are not entirely distinct from one another. Trained 

experts commonly extrapolate from existing data. But nothing in either Daubert

or the Federal Rules of Evidence requires a district court to admit opinion 

evidence which is connected to existing data only by the ipse dixit of the expert. 

A court may conclude that there is simply too great an analytical gap between the 

data and the opinion proffered. 

Joiner v. General Electric, 522 U.S. 136, 146 (1997); see also Guillory v. Domtar Indus., Inc., 

95 F.3d 1320 (5th Cir. 1996) (“Expert evidence based on a fictitious set of facts is just as 

unreliable as evidence based on no research at all. Both analyses result in pure speculation.”). 

“[T]he court is now obliged to screen expert testimony to ensure it stems from, not just 

reliable methodology, but also a sufficient factual basis and reliable application of the 

methodology to the facts.” Rudd v. General Motors Corp., 127 F. Supp. 2d 1330, 1336 (M.D. 

Ala. 2001). 

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Each of Kondner’s conclusions is “connected to existing data only by the ipse dixit of the 

expert.” See Joiner, 522 U.S. at 146. Kondner has been retained to render opinions in several 

manufactured housing cases involving claims of moisture problems resulting from the use of 

interior vapor barriers, but he admits that he has not actually seen a single home about which he 

is rendering opinions, and he has no field experience with Parks to assess the reliability or 

accuracy of Parks’ investigations on which Kondner relies: 

Q. Have you seen any of the homes that you’ve rendered opinions on in the hot 

and humid climate litigation? 

A. I have not personally seen any of them. 

... 

Q. Okay. Is it fair to say that you have relied on [Parks’] opinions in rendering 

yours? 

A. I’ve relied on his findings. 

... 

Q. [H]ave you had any field experience with Mr. Parks or Mr. Bonney in the 

series of cases I’m questioning you about today, the hot and humid climate cases? 

A. Field experience with them on those? No, because I have not been to 

Alabama and I did not see the particular house. 

... 

Q. I want to know what you know. 

A. I don’t know anything about the house, physical house itself, because I was 

never there. I have never seen it. I have to rely on Bonney’s report. 

Case 1:06-cv-00682-TFM Document 66 Filed 03/28/2008 Page 14 of 18
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Exhibit A 13:14-17, 14:10-12, 18:20-19:3, 48:17-21. Without having seen any of the homes or 

talked to the homeowners, see Id. at 104:11-15, it is no surprise that Kondner produces reports 

that he admits are “virtually identical to one another,” with the names, dates, and addresses being 

the only information specific to each home. See Id. at 147:7-10; Exhibit B; Kondner Reports in 

Murphy, Ford, and Deese, attached hereto as Exhibit F. Indeed, Kondner’s conclusions in his 

report about the Stricklands’ home can be boiled down into just two opinions: 1) the interior 

vapor barrier caused moisture accumulation, resulting in “structural deterioration and ... fungal 

(mold) growth within the wall structure,” and 2) “Such construction in direct violation of 

accepted engineering practice ... does not meet the performance requirements of 24 C.F.R. 

3280.303(b).” Exhibit B, p. 6. 

Kondner’s claims are refuted not only by the HUD Code issues previously discussed, but 

they also suffer from a complete lack of physical evidence of problems in the walls themselves. 

Kondner, of course, has no independent evidence of structural deterioration or fungal growth, 

and bases that conclusion solely on Parks’ report. See, e.g., Exhibit C 42:11-18, (“Q. Do you 

know what kind of mold testing Mr. Parks did in the Ford home? A. Well, I think if you go back 

and look at the results that are reported by the testing laboratory, it will tell you. Q. I’m 

wondering if you know. A. If I know? Oh, the only thing that I know is what he’s reported.”) As 

explained in the separately filed Daubert motion to exclude Parks, Parks similarly has no valid 

evidence of structural deterioration. Kondner has formed all of his opinions without ever having 

exposed himself to scintilla of physical evidence in the case. Ignoring the actual physical 

condition of the walls in the Stricklands’ home is a fatal flaw in Kondner’s conclusions. 

Given the “analytical gap between the data and the opinion proffered,” this Court must 

take seriously its gatekeeper role and ensure that Kondner “has a sufficient factual basis” to 

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support any conclusions before admitting them into evidence. See Rudd, 127 F. Supp. 2d at 

1336; Joiner, 522 U.S. at 146. In this case, a review of the record makes clear that Kondner 

cannot pass the Daubert standard for admissibility of expert testimony. First, he lacks the 

qualifications necessary to offer the opinions contained in his report. Second, rather than 

conducting an independent investigation of the Stricklands’ home that could support his 

conclusions, he instead bases his opinions on a “fictitious set of facts,” which is itself based on 

the unreliable, unqualified and unsubstantiated opinions of Bobby Parks. See Guillory, 95 F.3d 

1320 (“Expert evidence based on a fictitious set of facts is just as unreliable as evidence based on 

no research at all. Both analyses result in pure speculation.”). As a result, Kondner’s testimony 

and opinions are inadmissible. 

III. Kondner’s Opinions Are Cumulative and Duplicative of Parks’ Opinions 

Finally, even if Kondner were to have the necessary qualifications (which he does not), 

and even if Kondner were to base his opinions on sufficient facts (which he does not), his 

testimony still must be excluded because it is cumulative and duplicative of Parks’ proposed 

testimony. 

“Because of the powerful and potentially misleading effect of expert evidence, sometimes 

expert opinions that otherwise meet the admissibility requirements may still be excluded by 

applying [Fed. R. Evid.] Rule 403.” U.S. v. Frazier, 387 F.3d 1244, 1263 (11th Cir. 2004) 

(internal citations omitted). Rule 403 provides: 

Although relevant, evidence may be excluded if its probative value is 

substantially outweighed by the danger of unfair prejudice, confusion of the 

issues, or misleading the jury, or by considerations of undue delay, waste of time, 

or needless presentation of cumulative evidence. 

Fed. R. Evid. 403. If expert testimony is cumulative or duplicative, exclusion of the evidence is 

appropriate under Rule 403. Frazier, 387 F.3d at 1263. 

Case 1:06-cv-00682-TFM Document 66 Filed 03/28/2008 Page 16 of 18
17 

In this case, Kondner’s conclusions are exactly the same as Parks’. See Exhibit B, p. 6; 

Parks Report, attached hereto as Exhibit G, p. 3. Furthermore, because Kondner conducted no 

independent research or analysis, the conclusions are based on the same data collected by Parks 

and offer no new information. The only reason Kondner is being called to testify is that the 

Stricklands are attempting to use an engineer to bolster the credibility of HVAC repairman 

Bobby Parks’ unqualified and unsupported opinions regarding the design, Code compliance and 

performance of the Stricklands’ walls. 

Allowing Kondner’s testimony and opinions into evidence would not assist the trier of 

fact in any way. His conclusions are already being offered by another proposed expert. His 

opinions are no different and offer no new data as compared to Parks’ proposed testimony. The 

probative value of Kondner’s testimony is even lower than that of Parks’ proposed testimony 

because Kondner has no personal knowledge of the conditions of the Stricklands’ walls. In 

short, the virtually non-existent probative value of Kondner’s testimony is substantially 

outweighed by high potential to confuse the jury through Plaintiff’s attempt to cloak Parks’ 

unqualified and unsupported opinions with an engineer’s blessing. Consequently, Kondner’s 

opinion and reports must be excluded from evidence under Rule 403. 

CONCLUSION

For the reasons set out in this brief, Defendant Champion Home Builders, Co. 

respectfully moves this Court to exclude the testimony and opinions of Robert Kondner. 

ORAL ARGUMENT IS REQUESTED

Case 1:06-cv-00682-TFM Document 66 Filed 03/28/2008 Page 17 of 18
18 

Respectfully submitted, 

RITCHEY & SIMPSON, PLLC 

/s/ Gregory S. Ritchey

Gregory S. Ritchey, Esquire {ASB-8193-H68G} 

Richard S. Walker, Esquire {ASB-8719-L70R}

Counsel for Champion Home Builders Co. 

OF COUNSEL:

RITCHEY & SIMPSON, PLLC 

3288 Morgan Drive, Suite 100 

Birmingham, AL 35216-3084 

Phone: 205.876.1600 

Facsimile 205.876.1616 

CERTIFICATE OF SERVICE

 I, the undersigned, do hereby certify that on the 28th day of March, 2008, I electronically 

filed the foregoing with the Clerk of Court using the electronic filing system which will send 

notification of the foregoing upon the following: 

Jere L. Beasley, Esquire 

W. Daniel Miles, III, Esquire 

C. Gibson Vance, Esquire 

C. Lance Gould, Esquire 

BEASLEY, ALLEN, CROW, 

METHVIN, PORTIS & MILES, P.C. 

Post Office Box 4160 

Montgomery, AL 36103 

/s/ Gregory S. Ritchey

OF COUNSEL 

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