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 BOBBY PARKS AND REQUEST FOR IN LIMINE HEARING

COMES NOW the Defendant, Champion Home Builders, Co. (“CHB”), and hereby 

moves this Court to exclude under Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579 

(1992), and Fed. R. Evid. 702, the expert testimony of Plaintiffs’ expert Bobby Parks (“Parks”). 

Pursuant to Fed. R. Evid. 104, CHB requests a hearing on this motion. See Daubert, 509 U.S. at 

592-93 (In conducting a Rule 104(a) inquiry, the court should assess “whether the reasoning or 

methodology underlying the testimony is scientifically valid and ... whether that reasoning or 

methodology properly can be applied to the facts in issue”). As grounds for this motion, CHB 

states as follows: 

INTRODUCTION

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 

Case 1:06-cv-00682-TFM Document 65 Filed 03/28/2008 Page 1 of 27
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North Carolina1

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

interior vapor barriers. Plaintiffs Nicholas and Jennifer Strickland (collectively referred to herein 

as “the Stricklands” or “Plaintiffs”) purchased a new CHB manufactured home in March 2003. 

(Compl. ¶ 6) (attached hereto as Exhibit A). The Stricklands allege that the design used for the 

exterior walls of the home is defective. (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 

was this design option that CHB used in the Stricklands’ home, constructing some of 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 

specially-retained “expert” witness Bobby Parks.3

 Parks performed two inspections of the 

 

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.’ 

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

values. 

3

 Plaintiffs also rely in part on the opinions and reports of specially retained “expert” witnesses Robert Kondner and 

Roy Bonney. Kondner, who has never inspected the Strickland home and who bases the vast majority of his 

conclusions on Parks’ conclusions, is the subject of a separate Daubert motion. Bonney is offered exclusively for 

determining the cost involved in replacing any wallboard portions that are found to be defective. As a result, 

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Stricklands’ home and concluded that the wall design violates the HUD Code Section 303(b) 

standards for accepted engineering practices and that some of the exterior walls in the 

Stricklands’ home suffer from extreme moisture, fungal growth, and structural deterioration as a 

result. Parks’ opinions are obviously crucial to Plaintiffs’ claims, and they must be stringently 

evaluated by this Court in its capacity as a gatekeeper under Daubert and Rule 702. 

SUMMARY OF ARGUMENT

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

requirements for the admissibility of expert testimony under Rule 702 and Daubert. He does not 

have any education beyond high school, and his background and training is in HVAC, not 

engineering, design, or the biological sciences. He lacks familiarity with many basic principles 

and terms common in the areas of manufactured housing design, the HUD Code, and the 

interpretation of mold sampling data. As a result, Parks is not qualified to testify in these areas. 

 In addition, Parks’ methodology in his investigation of the Stricklands’ home was 

unreliable and without scientific merit. First, Parks misused critical instruments while recording 

his data. Second, Parks failed to follow industry standards in preparing and documenting the 

investigation. Third, Parks both employed mold sampling methods and promoted conclusions 

that have not been peer-reviewed for validity and are not generally accepted within the field. 

Fourth, Parks failed to rule out alternate sources of moisture. Any one of these methodological 

errors is enough to undermine the reliability of Parks’ opinions. Taken together, however, these 

errors compound upon one another such that Parks’ conclusions ultimately rest on no scientific 

basis whatsoever. 

 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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Finally, Parks relied on inaccurate and insufficient data in his investigation. Thus, his 

conclusions are not supported by the evidence he gathered. For example, Parks 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. Parks 

concludes that the Stricklands’ walls suffered extensive water damage, yet he never tested their 

performance. In short, Parks makes inappropriate analytical leaps between his evidence and the 

opinions he forms on the basis of that evidence. In fact, the only court that has considered expert 

testimony from Parks in a moisture-related manufactured home case described Parks as “an 

extreme advocate” and concluded that “the Court cannot place weight on the testimony of this 

witness as it is not substantiated and corroborated by the evidence on the scene.”4

 Parks is 

similarly attempting to introduce unqualified and unsupported opinions in this case. For all of 

these reasons, Parks’ testimony and opinions are due to be excluded from evidence. 

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. 

 

4 See infra; Aucoin v. Southern Quality Homes, LLC, No. 99791-C (La. Dist. 16 2005), aff’d by No. 06-979 (La. 

App. 3d Cir. 2006). 

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The amended Rule 702 codified the Supreme Court’s decisions in Daubert v. Merrell 

Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786 (1993), and Kumho Tire Co. v. Carmichael, 

119 S.Ct. 1167 (1999). See Fed. R. Evid. 702 advisory committee’s note. Rule 702 has three 

fundamental requirements. First, the expert must be qualified to testify. Second, the expert’s 

opinion must be based on scientific, technical, or specialized knowledge. Third, the expert’s 

testimony must “assist the trier of fact.” See Daubert, 509 U.S. 579. The Daubert Court pointed 

out that a key indicator as to whether an expert’s testimony assists the trier of fact is whether the 

method used by the expert is reliable. Id. at 589. Furthermore, the Advisory Committee’s Notes 

to Rule 702 state that the codification of Daubert “provides some general standards that the trial 

court must use to assess the reliability and helpfulness of proffered expert testimony.” Fed. R. 

Evid. 702 advisory committee’s note. 

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 

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

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”). 

 When acting in this “gate keeping” role, the trial judge must determine “whether the 

reasoning or methodology underlying the testimony is scientifically valid and whether that 

reasoning or methodology properly can be applied to the facts in issue.” See Daubert, 509 U.S. 

592. Moreover, the trial judge “must determine whether the evidence is genuinely scientific, as 

distinct from being unscientific speculation offered by a genuine scientist.” See Allison v. 

McGhan Med. Corp., 184 F.3d 1300, 1316-137 (11th Cir. 1999) (quoting Rosen v. Ciba-Geigy 

Corp., 78 F.3d 316, 318 (7th Cir. 1996)). 

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

conclusions, the reliability of his methods, and the reliable application of his methodology to the 

facts. 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 their burden. 

ARGUMENT

 The testimony and reports of Bobby Parks should be excluded because Parks is not 

qualified as an expert in the design of manufactured housing, the interpretation of the HUD 

Code, or the interpretation of mold sampling data. Furthermore, the methodology used by Parks 

in his investigation of the Stricklands’ home is unreliable and without scientific merit. Finally, 

Parks relies on inaccurate and insufficient data in his investigation, and his conclusions are not 

supported by the evidence he has gathered. 

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I. Parks Is Not Qualified to Testify to These Matters 

 Parks’ specialty is in HVAC, as he has more than twenty years of experience in the field. 

There is nothing in either Park’s testimony or report that indicates he found any problems with 

the Strickland home’s HVAC system that contributed to the problems that he alleges. Having 

found no significant issues with the HVAC system, Parks now proposes to testify that some of 

the exterior walls in the Stricklands’ home are designed improperly, do not comply with HUD 

Code regulations, and are structurally unsound as evidenced by excessive moisture and fungal 

growth to the point that they will “eventually render the home unfit for it’s [sic] intended 

purpose.” (Parks Rep. 3) (attached hereto as Exhibit B). Parks, however, is unqualified to testify 

about these matters. 

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

experience, training, or 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.”). Nothing in Parks’ curriculum vitae indicates that he is qualified to express any 

opinion regarding wall designs in manufactured housing or the interpretation of mold sampling 

data. In fact, Parks’ work history shows that his experience comes as an HVAC repairman, and 

not as a design or mold expert. 

A. Parks Is Not Qualified to Offer Design Opinions 

Parks is not qualified to testify regarding design issues in the Stricklands’ home. Parks is 

not an engineer or architect. He has no college education, and has had no training in any 

architectural or engineering programs that address how to properly design manufactured housing 

walls: 

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Q. You're not an engineer. 

A. Not an engineer. 

Q. You're not a design professional. 

A. No. I've not been utilized as a design -- I've been utilized to offer opinions and 

test these designs, but I'm not an engineer or architect. 

Q. You're not qualified under the HUD code to draw and stamp prints for walls. 

A. No, sir. 

Q. Never had any building-science classes on how to construct walls under the HUD 

code? 

... 

A. No, because I'm not aware of any that are available. 

Q. But you've never gone to a day of college in building science. 

A. No, sir. 

Q. No engineering, no architectural experience. 

A. Again, no, sir. 

(Parks Dep. in Murphy v. Southern Energy Homes, 2007 WL 2080428 (M.D. Ala. 2007) 99:7-

100:8, Nov. 27, 2007) (attached hereto as Exhibit C). 

Despite his lack of any training or experience as an engineer or design professional, Parks 

opined that the Stricklands’ home uses an “inappropriate wall design” that is responsible for 

significant structural damage. (Exhibit B p. 3.) Whatever experience Parks may have inspecting 

manufactured homes as an HVAC repairman, that does not qualify him to testify about design 

issues with the wall construction. See Bogosian v. Mercedes-Benz of N. Am., Inc., 104 F.3d 472 

(1st Cir. 1996) (holding that a non-engineer mechanic/consultant was not competent to testify as 

to design defect issues); Smith v. Ford Motor Co., 882 F. Supp. 770 (N.D. Ind. 1995) (finding 

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that a body shop mechanic/accident investigator who had repaired electrical and fuel systems 

was not competent to testify as to electrical and fuel systems design issues); 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). Several of the witnesses in the cases just cited were 

in fact engineers, but were still deemed unqualified to testify as to design issues outside of their 

particular field. Parks, on the other hand, is significantly less qualified, as he not only has no 

design experience in the particular field of manufactured housing wall construction, but he has 

no design or engineering education or experience whatsoever in any field. 

B. Parks Is Not Qualified to Offer Opinions Regarding HUD Code Compliance 

Parks’ 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. Parks claims that CHB’s application of § 504(b) to the 

Stricklands’ home provides the primary basis for liability in this case, yet Parks is not even 

familiar with the basic design principles employed by § 504(b). This is evident from Parks’ 

inability to even identify the four construction methods expressly allowed by the HUD Code, 

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much less describe in detail how to design them. (Exhibit C 106:4-14.) Furthermore, as 

explained below, Parks 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. (Parks Dep. vol. 1, 71:14-19, 72:2-12, Sept. 20, 2007) (attached 

hereto as Exhibit D). 

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. (Tompos Decl. ¶ 7) (attached hereto as Exhibit 

E). 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 

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. Id. at ¶ 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 

 

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). 

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. 

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substantiate restricting § 504(b)(1) to Zones 2 and 3. (Exhibit E ¶ 8; Parks Dep. in Deese v. 

Champion Enters., Inc., No. 1:06-CV-643-MHT (M.D. Ala. filed June 19, 2006) 

176:12-20, Feb. 19, 2007 (attached hereto as Exhibit F).) 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 E ¶ 9.) 

Parks 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). Parks’ 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). 

HUD Letter from Assoc. Deputy Asst. Sec. for Reg. Affairs and Mfr’d Housing, January 19, 

2007 (attached hereto as Exhibit G).7

 Because Parks does not have an engineering background and because his statements and 

opinions exhibit a fundamental misunderstanding of basic principles contained within the HUD 

Code, Parks should not be allowed to opine that the Stricklands’ wall construction violates the 

HUD Code. 

 

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

Mold Sampling Data 

Parks also lacks the qualifications necessary to interpret mold sampling data. Parks 

himself admits that he is not a mold expert and would not hold himself out to be one in federal 

court. (Exhibit C 34:18-35:4.) He has no college education, no training in biology or the 

environmental sciences, and little or no training in mold remediation. Id. at 19:10-22:19. While 

Parks appears to hold a mold remediation license from the state of Louisiana, he admits that he 

has never actually performed a single mold remediation: 

Q. How many jobs have you served as a licensed mold remediator for where you've 

actually remediated a building? 

A. None. 

Id. at 29:5-8. Parks also admits that he has no more than fifteen days of training in the area of 

mold interpretation. Id. at 35:8-37:9. 

 Notwithstanding his lack of training, education, and experience, Parks believes he is 

qualified to testify about the interpretation of mold sampling data. This claim is refuted by The 

Institute of Inspection, Cleaning and Restoration Certification S520 Standard and Reference 

Guide for Professional Mold Remediation (“IICRC S520”) (attached hereto as Exhibit K) which 

is accepted by the scientific community as a primary authority for industry standards in the field 

of mold evaluation and remediation of indoor environments. Professionals performing indoor 

fungal evaluations should be familiar with these industry standards and their terminology and 

recommended procedures. Parks agrees that the IICRC S520 represents acceptable industry 

standards (Parks Dep. in Ford v. Champion Enters., 231 Fed. Appx. 902 (11th Cir. 2007) vol. 2, 

150:21-151:02) (attached hereto as Exhibit I), but nonetheless displays a fundamental lack of 

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knowledge and familiarity with basic terminology and concepts in the mold remediation and 

evaluation field. 

In the area of mold remediation, mold sampling and mold data interpretation, the IICRC 

S520 is the work accepted by the scientific community as a primary authority for industry 

standards. When questioned, Parks acknowledged this to be the case: 

Q. Are you familiar with the IICRC 520? 

A. Yes, sir. 

Q. Do you consider that to be an authoritative work? 

A. I would consider it to be, yes, sir. 

(Exhibit I 150:21-151:02) Parks feels that he is competent to interpret mold sampling data 

because he is a mold remediator. However, as mentioned above, he has never actually 

remediated a building. Even if he was an experienced remediator he still would not be qualified 

to interpret mold sampling data. The IICRC S520 clearly indicates that remediators are not 

qualified to interpret mold data. (Exhibit K p.69). The IICRC S520 indicates that Indoor 

Environmental Professionals (“IEP”) are the ones qualified to interpret mold data. Parks recently 

testified that he has never heard the term and does not know what an IEP is. (Exhibit C 169:1-9.) 

Parks admitted that he is not an IEP. Id. at 24:16-22. The IICRC S520 defines an IEP as: 

“an individual who is qualified by knowledge, skill, education, training and/or 

experience to perform an assessment of the fugal ecology of property, systems, 

and contents of the job site, create a sampling strategy, sample the indoor 

environment, interpret laboratory data and determine Condition 1, 2 and 3 for the 

purpose of establishing a scope of work and verifying the return of the fungal 

ecology to a Condition 1 status.” 

Exhibit K p. 129. In spite of the above Parks has endeavored to provide many of the 

functions of an IEP without the appropriate qualifications. In his report he illustrates his 

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sampling strategy which he concocted himself. (Exhibit F 277:5-286:23; Exhibit B p. 7-8;

Conlin Decl. ¶ 9, attached hereto as Exhibit H.) His methods have never been peer 

reviewed or used by anyone else, they are his own invention. (Exhibit F 277:5-286:23; 

Exhibit B p. 7-8; Exhibit H ¶ 9.) He also samples the environment and offers an 

interpretation of that data in his report. (Exhibit B p. 7-8). Further, the IICRC S520 

indicates that only an IEP can be trusted to select and use mycology/microbiology 

laboratories. (Exhibit K p.132). Terms such as “normal fungal ecology,” “primary, 

secondary, and tertiary fungal colonizers,” and “Condition 1, Condition 2, and Condition 

3” are defined in the IICRC S520 and are used as the industry standard to describe 

various types and levels of fungal contamination found in an indoor environment (Exhibit 

K pp. 14, 36-38), but Parks shows in his deposition that he is unfamiliar with these basic, 

fundamental terms: 

Q. Can you tell me the difference between a primary, secondary, and tertiary 

colonizer of fungi? 

A. No, sir... 

Q. Do you know what a Condition 1, Condition 2, or Condition 3 environment in a 

home is relative to mold infiltration or contamination? 

A. No, sir, I'm not familiar with that terminology. 

Q. What is normal fungal ecology? 

A. Normal fungal ecology? 

Q. Yes, sir. 

A. I don't know that I can specifically define that for you here. 

(Exhibit C 12:10-13, 13:15-20, 29:22-30:3.) Parks’ lack of knowledge of these basic concepts of 

mold investigations demonstrates that he is unqualified to perform such investigations. (Exhibit 

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K p. 129.) According to the IICRC S520, IEPs are qualified to interpret laboratory data on the 

mold samples taken in the course of a fungal ecology assessment, but mold remediators (which 

Parks claims to be) are not. Id. at p. 69. Because Parks is not an IEP, he is not qualified to 

interpret mold laboratory data according to industry standards. Id. at p. 69. Therefore, he cannot 

satisfy the Rule 702 requirements for expert testimony in this area. 

II. Parks’ Methodology Is Unreliable 

As previously stated, the reliability of an expert’s methodology is critical to determining 

whether expert testimony assists the trier of fact. Daubert, 509 U.S. at 589. Rule 702 imposes a 

duty upon district courts to act as “gatekeepers” and ensure that speculative and unreliable 

opinions do not reach the trier of fact. McCorvey, 298 F.3d at 1257; Daubert, 509 U.S. at 589 

(requiring that courts “ensure that any and all scientific testimony or evidence admitted is not 

only relevant but reliable”). Fulfilling this “gatekeeper” duty requires a court to “assess the 

reasoning and methodology underlying the expert’s opinion and determine whether it is both 

scientifically valid and applicable to a particular set of facts.” Goebel v. Denver & Rio Grande 

W. R.R. Co., 346 F.3d 987, 991 (10th Cir. 2003). 

In considering the methodology employed by the proffered expert, "any step that renders 

the analysis unreliable . . . renders the expert's testimony inadmissible. This is true whether the 

step completely changes a reliable methodology or merely misapplies that methodology." Moore 

v. Ashland Chem., Inc., 151 F.3d 269, 279 n.11 (5th Cir. 1998), cert. denied, 526 U.S. 1064 

(1999) (emphasis added) (internal citations omitted). 

To aid in this inquiry, the Supreme Court has identified four factors that bear on the 

reliability of expert testimony. Daubert, 509 U.S. at 592-94. Those factors include: (1) whether 

a theory or technique can be or has been tested; (2) whether it has been subjected to peer review 

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and publication; (3) whether a technique has a high known or potential rate of error and whether 

there are standards controlling its operation; and (4) whether the theory or technique enjoys 

general acceptance within a relevant scientific community. Id. These factors are neither 

definitive nor exhaustive, and a federal court should consider any additional factors that may 

advance its Rule 702 analysis. Kumho, 526 U.S. at 150. 

When these standards are applied to Parks’ methodology, it becomes clear that Parks’ 

methods are not scientifically reliable. In fact, Parks makes multiple methodological errors, any 

one of which by itself renders his analysis unreliable. Benkwith, 467 F. Supp. 2d at 1322 (“any 

step that renders the analysis unreliable under the Daubert factors renders the expert’s testimony 

inadmissible”) (internal citations omitted). Taken together, Parks’ multiple errors only 

compound the problems with his analysis. As such, his conclusions are unreliable and without 

any scientific merit. 

A. Parks’ Use of Moisture Meters in the Stricklands’ Home is Unreliable 

Parks employed unreliable methodology in his attempt to use moisture meter readings to 

show excessive moisture accumulation within the walls. It is well established that moisture 

meters are unreliable and cannot properly measure the actual moisture content of gypsum 

wallboard. (Exhibit H ¶ 6.) Moisture meters such as the one used by Parks on the Stricklands’ 

home measure the dielectric strength, called the capacitance, of a material in its proximity. Id. 

Water content influences capacitance, but it is an electrical property of the gypsum wallboard 

that is actually being measured by the device, not the moisture level itself. Id. If a moisture 

meter is properly calibrated, it is possible to compare the moisture content of one portion of a 

wall to another, but to determine the actual moisture content of gypsum wallboard, it is necessary 

to remove a piece of the wallboard and bake it to measure the amount of water that is removed in 

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the baking process. Id. Parks admits that he did not calibrate his meter until some time after he 

did his inspection of the Stricklands’ home. (Exhibit D vol. 1, 46:7-15.) Parks’ relaxed attitude 

toward the proper maintenance (and therefore reliability) of his moisture meter was illustrated in 

another case where he indicated: “Q. You've used the meter for years and you've never calibrated 

it. A. This one, that's correct.” (Exhibit C 127:21-23.) He later went on to say: 

Q. Now, you would agree with me if you found moisture readings of 25 to 

40 percent, you can't say what the absolute percentage of moisture in those 

walls is because you didn't cut and bake the sample. 

A. That is correct. 

Q. And cutting and baking is the only authoritative way to know for sure. 

A. That's correct. 

(Exhibit C 131:20-132:6.) Therefore, any attempt by Parks to make claims about the absolute 

moisture content of the walls based on moisture meter readings is improper, unreliable, and not 

based on any scientific standards. 

However, despite Parks’ acknowledgement that his moisture meter readings do not, and 

cannot, measure the actual moisture content in these gypsum walls, Parks nonetheless relies on 

his moisture meter readings to opine that the walls had too much moisture on an absolute scale. 

Parks knew how to determine the actual moisture content, but he did not perform the cut and 

bake test necessary to do so. Instead, despite knowing that moisture meters, even when used 

properly on gypsum wallboards, are only good for comparative studies, Parks, without reference 

to any scientifically accepted standards or peer-reviewed methodology, relied on the moisture 

meter readings to opine that the Stricklands’ walls were prematurely deteriorating because of 

moisture accumulation. (Exhibit B 4.) His report states that the walls’ moisture levels in the 

Stricklands’ home were found to exceed 25%. Id. This finding is laughable because gypsum 

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board does not exist as a solid at moisture contents above 10%. (Exhibit H ¶ 6.) If Parks’ 

findings were accurate then the walls would have been reduced to puddles. Simply put, Parks’ 

use of moisture meters in his investigation is unreliable and inadmissible. See Benkwith, 467 F. 

Supp. 2d at 1328 (refusing to admit proposed expert testimony when the expert “leap[s] from an 

accepted scientific premise to an unsupported one”). 

B. Parks’ Did Not Conform to Industry Standards in His Thermographic 

Imaging of the Stricklands’ Home 

Parks’ use of an infrared camera in his investigation is similarly unreliable. Parks used 

an infrared camera to measure the temperature distribution of the wallboard (Exhibit D vol. 2 

214:18-21.), but he failed to adhere to industry standards in doing so. Infrared cameras can be 

set at different levels to focus on temperature variations of different magnitudes. (Exhibit H ¶ 7.) 

For example, a camera can be programmed to highlight temperature differences as small as one 

degree Fahrenheit, or it can be programmed to only display variations of ten degrees or more. Id. 

Translating this temperature profile into reliable information on moisture content requires 

removal of the specific portion of the wallboard in question to examine the quality of insulation, 

the presence of extra thermal bridging, and possible air leakage in the wall. Id.

The ASTM (American Society for Testing and Materials) Standard Practice for 

Thermographic Inspection provides the accepted industry standards in the field of thermographic 

imaging. Id. at ¶ 8. 

Parks holds only a Level I thermography certification. The American Society of 

Nondestructive Testing describes Level I training with the following limitations: 

“Level I infrared thermographer ... shall perform inspections under the 

cognizance of a Level II or Level III... Level I shall not independently perform 

nor evaluate inspection results... when such inspection results are for the purpose 

of verifying compliance to code or regulatory requirements.” These actions by 

Parks violate the standard reporting expectations of thermographic inspections as 

indicated by the ASTM Standards for Thermographic Inspection and by the 

American Society of Nondestructive Testing. 

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Id. These standards call for certain criteria to be met before an infrared camera can be used 

reliably. Id. at ¶ 7. For example, the difference between the indoor and outdoor temperature 

should be at least 18 degrees Fahrenheit for at least four hours prior to inspection. Id. In 

addition, an inspector should not allow any direct sunlight on an inspected surface for at least 

three hours prior to the inspection. Id.

Parks, however, testified that he does not know what settings were used in his 

thermographic imaging of the Stricklands’ home. (Exhibit D vol. 1 56:4-8; Exhibit B.) Parks 

cannot state the magnitude of the temperature differentials captured by the camera. (Exhibit D 

vol. 1 56:4-8; Exhibit B). Parks cannot point to, and did not document, any attempt to measure 

or control for sunlight exposure prior to the moisture meter use. (Exhibit D vol. 1 56:4-8; 

Exhibit B). Parks cannot point to, and did not document, any attempt to measure the difference 

between the inside and outside temperature, either at the time of testing or for the several hours 

before testing. (Exhibit D vol. 1 56:4-8; Exhibit B). Parks did not take the time to remove a 

small part of the gypsum wallboard to inspect it for moisture content. (Exhibit D vol. 2 225:7-

11; Exhibit B). These actions by Parks violate the ASTM industry standards for thermographic 

imaging. (Exhibit H ¶ 8.) 

Parks’ reports and opinions regarding his use of the infrared camera also ignore the fact 

that the HUD Code explicitly allows for a certain amount of heat transfer within the walls of a 

manufactured home. Id. These areas are known as “thermal shorts.” Thermal shorts are present 

in all wall construction, and the HUD Code allows thermal shorts to cover up to one percent of 

the total exterior wall surface area. 24 C.F.R. § 3280.508(c). The areas identified in Parks’ 

infrared pictures that display temperature differentials of an unknown magnitude compose an 

aggregate area of far less than one percent of the exterior wall surface area. (Exhibit E ¶ 11.) 

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The fact that Parks does not acknowledge that thermal shorts are allowed under the HUD Code 

underscores his lack of familiarity with the Code and his lack of thoroughness in the 

thermographic inspection. Id.

Without adhering to industry standards in either the preparation for, or documentation of, 

thermographic imaging, Parks’ methodology cannot be relied upon for useful or accurate 

information. 

C. Parks’ Methodology for Mold Sampling in the Stricklands’ Wall Cavities 

Lacks Scientific Validity 

Parks claims that the presence of mold within certain portions of the Stricklands’ wall 

cavities proves there is a defect in the structural integrity of the walls. There are several 

problems with this approach. Though Parks is able to find mold spores in wall cavities he is 

unable to determine whether or not his findings represent “normal fungal ecology” or “Condition 

1.” (Exhibit K p. 14). As discussed above he is not an IEP and therefore lacks the training to 

make such an assessment. His assessments are not based on any training or special competence 

and therefore amount to mere conjecture. One has to ask, if Parks cannot say what normal fungal 

ecology is then how can he say what is high or abnormal? “Q. What is normal fungal ecology? 

A. Normal fungal ecology? Q. Yes, sir. A. I don't know that I can specifically define that for 

you here.” (Exhibit C 29:22-30:3.) Parks’ lack of training indicates that he would not recognize 

normal fungal ecology if he saw it. Accordingly, any conclusion Parks draws from the presence 

of fungal spores in the wall is not based on established industry standards. As such, Parks is 

engaging in conjecture and his opinions are not the product of the scientific method. Parks, being 

unable to favorably apply any standard from the IICRC S520, appears to have tumbled to the 

Baxter/ETS and National Allergy Bureau standards, which he cites in his report. However, not 

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only do these standards not apply to wall cavities, but they employ a methodology (set mold 

contamination action levels) which has been specifically rejected by the IICRC S520: 

Thus, S520 represents a philosophical shift away from setting numerical mold 

contamination action levels. Instead, it establishes mold contamination 

definitions, conditions (1, 2, 3) and general guidance, which, when properly 

applied, can assist remediators and others in determining criteria that trigger 

remediation activities or confirm remediation success. 

(Exhibit K p. 6.) Parks application of these “standards” to wall cavity air samples is therefore 

misleading and unreliable. Parks even admits that he has no authoritative source that supports 

his methodology: 

Q. You don't have any authoritative source to indicate one way or the other whether 

indoor wall or -- whether wall sampling that you took can be applied to these 

standards. 

A. I agree. That's my opinion. 

(Exhibit C 142:4-9). 

In general, Parks’ wall cavity sampling methodology lacks scientifically valid standards 

and procedures. By pushing the insulation away from the gypsum wallboard to obtain an air 

sample, Parks compromises the air samples. (Exhibit H ¶ 9.) According to Parks himself, he 

created his own sampling methodology, which did not include true random sampling. (Exhibit F

277:5-286:23.) Parks’ methodology has not been peer-reviewed for validity or generally 

accepted by other scientists in the field. (Exhibit F 277:5-286:23; Exhibit H ¶ 9.) As a result, his 

methodology is unreliable and the results derived from that methodology should not be admitted 

into evidence. 

D. Parks Failed to Account for Alternate Sources of Moisture 

Perhaps Parks’ greatest methodological error was his failure to account for alternate 

sources of moisture. Parks’ contention is that the vinyl covered gypsum wallboard caused 

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condensation to accumulate within the wall cavity. However, Parks failed to consider, much less 

rule out, several factors that are known to regularly influence moisture levels in manufactured 

home walls. Standard industry practice and standard scientific methods require testing for 

alternative explanations for any observed moisture accumulation in a case like this. (Exhibit H ¶ 

5; see Benkwith, 467 F. Supp. 2d at 1325 (“Scientific methodology is based on generating 

hypotheses and testing them to see if they can be falsified ... This experiment appears to have 

been undertaken more to bolster a conclusion than to test a hypothesis.”)). Without controlling 

for these factors, it is impossible to evaluate the cause for the alleged moisture problem. (Exhibit 

H ¶ 5.) Indeed, with Parks’ inadequate methodology, it is impossible to tell whether the interior 

vapor barrier is even contributing to any problem at all. Omission of these factors in Parks’ 

analysis is a fatal flaw that renders the report’s conclusions unreliable. In the Plaintiffs’ 

deposition, Becky Hunt described bulk water leaks behind the kitchen sink and at the front door. 

(Strickland Dep. 114:22-23, 115:1-13, 139:17-23, Oct. 29, 2007) (attached hereto as Exhibit J).8

 

Despite this information, Parks did not indicate that he asked the Plaintiffs about the presence of 

bulk water leaks. Parks also did not rule out other alternate sources of moisture, such as weather 

events or setup issues. (Exhibit D vol. 1 146:16-23, 147:1-9; vol. 2 187:15-17, 190:2-9.) All of 

these factors should have been taken into account in a proper investigation of potential moisture 

problems in manufactured housing walls. (Exhibit H ¶ 5.) 

III. Parks’ Conclusions Do Not Reasonably Flow from His Data 

Daubert requires that the court focus primarily on the principles and methods employed 

by the expert. 509 U.S. at 594-595. At the same time, though, it is well settled law that expert 

testimony must be “more than belief or unsupported speculation.” See id. at 590. The Eleventh 

 

8

 It should be noted that the Plaintiffs are both hearing impaired and their depositions were taken together in one 

transcript with the aide of an interpreter, Ms. Becky Hunt. 

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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). 

Several of Parks’ conclusions are “connected to existing data only by the ipse dixit of the 

expert.” See Joiner, 522 U.S. at 146. Parks’ conclusion that HUD Code violations are causing 

structural deterioration is one of those conclusions that is not supported by Parks’ investigation. 

Rather, it is refuted not only by the HUD Code issues previously discussed, but it is also in direct 

conflict with Parks’ own deposition, in which he admitted that the HUD Code does in fact still 

allow 504(b)(1) walls in the humid and fringe zone climate, as well as Parks’ own unsuccessful 

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efforts to change the Code to prohibit the use of such walls in Zone 1. (Exhibit C 182:2-21.) 

Parks’ claim of structural deterioration also suffers from a complete lack of physical evidence of 

problems in the walls themselves. Instead, Parks relies on uncalibrated relative moisture meter 

readings to conclude that the walls have excessive moisture accumulation, but he never tested the 

actual moisture content of the walls. (Exhibit H ¶ 6.) 

Parks’ conclusions regarding condensation as the cause of moisture accumulation in the 

walls similarly do not comport with the existing data. In addition to Parks’ failure to consider 

several viable alternate sources of moisture, discussed supra, Parks also failed to take into 

account the actual weather data for the area. Id. at ¶ 10. An analysis of historical weather data 

for Dothan, Alabama (the closest NOAA station to the Stricklands’ home) shows that there has 

been only one (1) day over the past four years when the outside daily dew point average was 

above 78 degrees, which is typically the wall temperature of manufactured homes in the 

summertime based on a thermostat setting of 75 degrees. Id. at ¶ 10. Parks himself admits that 

when the wall cavity surface is warmer than the dew point of the outside air, condensation in the 

wall cavity is impossible. (Exhibit C 177:7-11 (“The surface temperatures would have to be 

below the dew point of the outside air in order for the actual state of – act of condensation to 

occur”)). 

Parks in the past has asserted without justification that the presence of mold in a wall 

cavity proves that the walls themselves are already or will eventually become structurally 

unsound: 

Q. Now, on page 2 of the report, you say the moisture has caused structural 

deterioration. 

A. In my opinion, yes, sir, it has. 

Q. Where in your report do you provide evidence of that? 

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A. I would say that the mold sampling, the fact that the -- we have mold present. 

Q. Has affected the structure? 

A. The gypsum board structure, in my opinion, yes, sir. 

Q. Can you show me any picture of any wallboard anywhere where the back paper 

of the wallboard has been deteriorated and degraded? ... Specifically. Can you show 

me where exactly? 

A. Okay. Based on the testing showing there was mold growth, Figure 1, Figure 2 -- 

Q. Well, that's indication of mold growth, not that the structure's been compromised; 

right? 

A. In my opinion, if we've got moisture and mold growth, then we've compromised 

the structure of that gypsum board. 

(Exhibit C 128:1-129:4.) Yet after his investigation, Parks could not provide any evidence of 

“soft” walls (Q: Did you find any soft walls in the Strickland home? A. I don't recall... Q. You 

didn't note anything in your expert report finding soft walls in either the Ford or Strickland 

homes; right? A. I did not write in my report of either one that the walls were soft. (Exhibit D 

vol. 1 59:1-19.)) or any evidence of actual moisture content, and as a result, he was forced to 

base his claim of structural deterioration on the mere presence of mold. However, the presence 

of mold by itself does not prove that moisture is currently present, and it certainly does not 

necessarily mean the walls will deteriorate in the future. (Exhibit K p. 14, definitions of 

Condition 1, 2, 3) It only shows that mold spores are present, but their source is unknown and 

can only be determined by a proper scientific investigation. Id.

Indeed, Parks cannot say whether any mold that was present in the Stricklands’ wall 

cavities was viable or not: 

Q. Is that mold growth viable or not? 

A. The air samples test both viable and non-viable. So I don’t know that. 

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(Exhibit D vol. 1 127:12-14.) Consequently, Parks has no way of determining whether any mold 

that may exist in the wall cavity resulted from a one-time bulk water leak or resulted instead 

from regularly occurring condensation within the wall cavity. Given the “analytical gap between 

the data and the opinion proffered,” this Court must take seriously its gatekeeper role and ensure 

that Parks “has a sufficient factual basis and reliable application of the methodology to the facts” 

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

1336; Joiner, 522 U.S. at 146; Aucoin v. Southern Quality Homes, LLC, No. 99791-C (La. Dist. 

16 2005), aff'd by No. 06-979 (La. App. 3d Cir. 2006) (describing Bobby Parks as “an extreme 

advocate” whose “testimony went well beyond the scope of his written report... the Court cannot 

place weight on the testimony of this witness as it is not substantiated and corroborated by the 

evidence on the scene”).9

 An objective analysis of the record clearly demonstrates that in this 

case, Parks has neither the qualifications, a sufficient factual basis, reliable methodology, nor a 

reliable application of that methodology. 

 

9

 The trial court decision, along with the appellate decision affirming it, is attached as Exhibit L. In a deposition 

given by Parks December 21, 2007 in Dugas v. CMH Manufacturing, Inc., et al. pending with the American 

Arbitration Association, Case No. AAA 69 420 04155 07, Parks conceded that he has never been admitted as an 

expert by any federal court and that the Aucion court was the only state court in which he was admitted as an expert 

for something other than in his HVAC field of expertise. 

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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 Bobby Parks. 

ORAL ARGUMENT IS REQUESTED

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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