IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ATLANTIC SPECIALTY 

INSURANCE COMPANY,

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Plaintiff,

vs. CIVIL ACTION NO. 13-458-CG-N

MR. CHARLIE ADVENTURES, 

LLC and KIM P. KORNEGAY,

Defendant.

ORDER

This matter is before the court on the motions of Defendants/ CounterPlaintiffs to exclude the testimony of Plaintiff’s experts (Docs. 34 & 35), Plaintiff’s 

response in opposition (Doc. 56), and the relevant assertions contained in the 

parties’ filings with regard to the pending motions for summary judgment (Docs. 38, 

44, 52, 54, 56, 57, 60). For the reasons explained below, the court finds that 

Defendants’ motions to exclude should be granted.

I. Background

This case involves an insurance claim for damage to Defendants’ yacht, the 

“Mr. Charlie,” and its contents by a fire that occurred on March 3, 2013. Plaintiff 

seeks a declaration that it does not owe coverage for the fire and Defendants have 

asserted counterclaims for breach of contract and bad faith. (Docs. 1, 6). 

Specifically, Plaintiff contends that coverage is excluded by the policy at issue 

because the loss results from “marine life” and/or Defendants’ “failure to maintain 

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the covered yacht in good condition and repair.” Plaintiff’s experts, Guy Plaisance 

and Gary Jones, have concluded that the fire originated in the engine compartment 

in the vicinity of the aft end of the starboard engine and resulted from the seawater 

intake screen for the starboard strainer being restricted by marine growth. (Docs. 

34-2, 35-6).

II. Motions to Exclude Experts

Defendants move to exclude the testimony of Plaintiff’s experts, Guy 

Plaisance and Gary Jones, under Rules 403 and 702. Rule 403 excludes relevant

evidence “if its probative value is substantially outweighed by a danger of ... unfair 

prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or 

needlessly presenting cumulative evidence.” FED. R. EVID. 403. Rule 702 provides 

for the admission of expert testimony when “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.” FED. R. EVID. 702(a). The United States Supreme 

Court in Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993) found 

that scientific expert testimony is admissible only if the proffered testimony is both 

relevant and reliable. “[A] district court judge is to act as a ‘gatekeeper’ for expert 

testimony, only admitting such testimony after receiving satisfactory evidence of its 

reliability.” Dhillon v. Crown Controls Corporation, 269 F.3d 865, 869 (7th Cir. 

2001); see also U.S. v. Majors, 196 F.3d 1206, 1215 (11th Cir. 1999). However, “it is 

not the role of the district court to make ultimate conclusions as to the 

persuasiveness of the proffered evidence.” Quiet Technology DC–8, Inc. v. Hurel–

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Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003). “[A] district court's 

gatekeeper role under Daubert is not intended to supplant the adversary system or 

the role of the jury.” Id. (citing Maiz v. Virani, 253 F.3d 641, 666 (11th Cir. 2001)). 

“Quite the contrary, ‘[v]igorous 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.’ ” Id. (quoting 

Daubert, 509 U.S. at 596, 113 S.Ct. at 2798).

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:

(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 has reliably applied the principles and methods to the 

facts of the case.

FED. R. EVID 702. The rule compels district courts to “conduct an exacting analysis 

of the foundations of the expert opinions to ensure they meet the standards for 

admissibility under Rule 702.” United States v. Abreu, 406 F.3d 1304, 1306 (11th 

Cir.2005) (quoting United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir.2004) 

(internal quotation marks omitted)). Accordingly, under Rule 702, “this Court has 

an obligation to screen expert testimony to ensure it stems from a reliable 

methodology, sufficient factual basis, and reliable application of the methodology to 

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the facts.” Whatley v. Merit Distribution Services, 166 F.Supp.2d 1350, 1353 (S.D. 

Ala. 2001) (citations omitted). The Eleventh Circuit requires district courts to 

engage in a “rigorous three-part inquiry” for assessing the admissibility of expert 

testimony under Rule 702:

Trial courts must consider whether: “(1) [T]he expert is qualified to 

testify competently regarding the matters he intends to address; (2) 

the methodology by which the expert reaches his conclusions is 

sufficiently reliable as determined by the sort of inquiry mandated in 

Daubert; and (3) the testimony assists the trier of fact, through the 

application of scientific, technical, or specialized expertise, to 

understand the evidence or to determine a fact in issue.”

United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir.2004) (quoting City of 

Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir.1999)). These 

requirements are known as the “qualifications,” “reliability,” and “helpfulness” 

prongs. See id. “[T]he proponent of the testimony does not have the burden of 

proving that it is scientifically correct,” but must establish “by a preponderance of 

the evidence, it is reliable.” Allison v. McGhan Medical Corp., 184 F.3d 1300, 1312 

(11th Cir. 1999) (citing In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 744 (3d Cir. 

1994)); see also Whatley, 166 F.Supp.2d at1354 (“the proponent of the expert 

testimony has the burden to establish by a preponderance of the evidence that the 

admissibility requirements of Rule 702 are satisfied.”)(citations omitted). Factors 

that may be relevant include:

(1) whether the theory or technique can be (and has been) tested, (2) 

whether the theory or technique has been subjected to peer review and 

publication, (3) in the case of a particular ... technique, the known or 

potential rate of error, and (4) whether the theory or technique is 

generally accepted by the relevant ... community.

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Hendrix ex rel. G.P. v. Evenflo Co., Inc., 609 F.3d 1183, 1194 (11th Cir. 2010) 

(internal quotation marks and alterations omitted). Additional factors that may be 

taken into account by a district court include:

 (1) Whether the expert is proposing to testify about matters growing 

naturally and directly out of research he has conducted independent of 

the litigation, or whether he has developed his opinion expressly for 

purposes of testifying;

 (2) Whether the expert has unjustifiably extrapolated from an 

accepted to an unfounded conclusion;

 (3) Whether the expert is being as careful as he would be in his 

regular professional work outside his paid litigation consulting;

 (4) Whether the field of expertise claimed by the expert is known to 

reach reliable results for the type of opinion the expert would give.

FED. R. EVID. 702 advisory committee's note to 2000 amendments (internal citations 

omitted).

A. Guy Plaisance

With regard to Plaisance, Defendants first contend that he is not qualified to 

testify as an expert on the cause or origin of fires because he is a marine surveyor 

by trade and has only a high school equivalency with no formal training as a fire 

investigator. However, “[t]he text of Rule 702 dictates that expert status may be 

based on experience, and the Advisory Committee Notes dictate that experience 

alone ‘may ... provide a sufficient foundation for expert testimony.’ “ United States 

v. Frazier, 387 F.3d 1244, 1295 (11th Cir. 2004) (italics in original) (citing Rule 702 

cmt. at 290) “After all, ‘[e]xperts of all kinds tie observations to conclusions through 

the use of what Judge Learned Hand called “general truths derived from ... 

specialized experience,’ “ and ‘no one denies that an expert might draw a conclusion 

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from a set of observations based on extensive and specialized experience.’ “ Id. at 

1298 (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149, 119 S.Ct. 1167, 1174, 

1178 (1999)). After reviewing Mr. Plaisance’s qualifications, the court finds he has 

sufficient experience to offer opinion testimony on the subject.

Defendants also contend that Plaisance’s conclusions are not reliable because 

they are not based on sufficient facts or data, they are not the product of reliable 

principles and methods and because the principles and methods are not reliably 

applied to the facts of the case. Plaisance’s report concludes that “the fire resulted 

due to the lack of required maintenance on the starboard main engine per the 

manufacturer’s recommendations and by the excessive amount of marine growth on 

the starboard sea strainer screen.” (Doc. 34-2, p. 24). Plaisance had both the 

starboard and port screens analyzed by a metallurgical consultant, Dr. Kendall 

Clarke. (Doc. 34-2, p. 18). Mr. Plaisance states in his report that Clarke determined 

that “the starboard sea scoop screen has an open area of 3.55 square inches or 1/5 

(20%)” of a new clean screen and the port screen has “an open area of 3.85 square 

inches or approximately 1⁄4 (26%) compared with a new screen.” (Doc. 34-2, p. 18). 

There is no reported data or analysis to indicate the significance of the difference 

between a screen that is 20% open as compared to 26% open, but Plaisance testified 

that apparently the generator and the port engine were getting the minimum flow 

required to avoid any overheating, because “[t]hey didn’t catch on fire.” (Doc. 34-1, 

p. 79). However, Defendants point out that Plaisance incorrectly relied on the 

measurements because Dr. Clarke actually reported that the starboard screen had 

the larger open area of 3.85 inches squared whereas the port screen had an open 

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area of 3.5 inches square. (Doc. 34-9, p. 3). So, when Plaisance thought 26% of the 

screen on the port engine was open, he concluded the extra 6% opening was 

sufficient to keep it from catching fire, but in fact the fire reportedly started from 

the exhaust of the engine with the screen that was 26% open and the exhaust from 

the engine with a screen that was open 6% less, did not catch on fire.

Plaisance also testified that while the percentage that the screens were open 

matters, there could have been a wide variety of other things that could have 

obstructed the seawater, such as a plastic bag or a rag being sucked up over it. 

(Doc. 34-1, pp. 83-86). If the starboard exhausts caught on fire and the port 

exhausts did not because a plastic bag or a rag obstructed the starboard screen, 

then it would not have been the marine growth or Defendants failure to have the 

screens cleaned that caused the fire.

Plaisance also based his opinion that the screen was too clogged to flow the 

required amount of water for the engine on information he received from John 

Moran, who is an employee of the company that manufactures the screen. (Doc. 34-

2, p. 18). Defendants contend Plaisance should not have relied on Moran because 

Plaisance does not know Moran’s qualifications and only spoke to Moran over the 

phone. (Doc. 34-1, pp. 36-38, 57-58). Additionally, Plaisance asked Mr. Moran to 

perform a flow rate calculation, but sent Mr. Moran the data sheet for a different 

engine than is at issue here. (Doc. 34-1, pp. 36-38). Plaisance later realized the 

mistake and informed Moran, but Moran did not recalculate the flow rate. Without 

making new calculations, Moran concluded: 

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I think the same basic problem exists. The screen was too clogged to 

flow the required amount of water (400 1/min or 450 1/min). The 

pressure loss was too great for the pump to overcome. Unless the pump 

is made to operate at a higher vacuum it probably wouldn’t flow 

enough water.

(Doc. 34-1, p. 44). The statement above only reports that Moran “thinks” there 

“probably” would not be enough water flow. Thus, Moran does not appear to be 

completely certain about the conclusion. According to an email, Plaisance also told 

Moran that the starboard screen had only 3.55 square inches of open area which, as 

discussed above, was incorrect. (Doc. 34-1, pp. 45-46). Given all of the problems 

above, the court does not find that the information from Moran was certain enough 

to be relied upon without additional verification.

Defendants also contend that Plaisance violated the scientific method 

because he formed a conclusion first and then attempted to find support for that 

conclusion after it was already pre-determined. On March 29, 2013, Plaisance 

reported that he believed the starboard engine had overheated as a result of the 

screen being too occluded to allow sufficient water flow. (Doc. 34-1, pp. 53-54). 

Plaisance reported that:

This overheating condition on the starboard engine could have created 

an intense exhaust heating in as much as 1300 degrees Fahrenheit 

(hot exhaust gas) which would have melted the neoprene rubber hose 

“boots” connecting the fiberglass exhaust tube to the riser and 

discharge tube. 

(Doc. 34-1, p. 54). However, it was later determined that the starboard engine did 

not overheat. (Doc. 34-1, pp. 25, 54). On April 20, 2013, Plaisance sent an email to 

Gary Jones and others asking whether it was possible for the exhaust temperature 

to get above 257 degrees Fahrenheit with limited seawater flow through the engine 

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and the engine not drastically overheat to a point of failure, yet the hot exhaust gas 

start burning the hose and gas pipe. (Doc. 34-1, pp. 27-31). His email stated that 

this was his primary question. Plaisance did not know if he ever got an answer to 

his question. (Doc. 34-1, p. 32-33). Plaisance is sure somebody concurred, whether 

in writing or orally, but Gary Jones did not respond, there is no record of a response 

from anyone else and Plaisance does not remember whom or if anyone responded.

(Doc. 34-1, pp. 32-34). Thus, Plaisance’s conclusion that the marine growth on the

screen could caused intense exhaust heating without overheating the engine is 

apparently based on the fact that he thinks someone told him that was possible. 

Plaisance has offered nothing to support his contention that it is possible and

Plaintiff has not submitted any other authority to show that it is possible. “To 

fulfill its gatekeeping function under Rule 702, a district court must not simply 

tak[e] the expert's word for it.” Edwards v. Shanley, 2014 WL 4747186, *6 (11th Cir. 

Sept. 25, 2014) (citation and internal quotations omitted). “If admissibility could be 

established merely by the ipse dixit of an admittedly qualified expert, the reliability 

prong would be, for all practical purposes, subsumed by the qualification prong.” Id.

(quoting United States v. Frazier, 387 F.3d 1244, 1258, 1261 (11th Cir. 2004) (en 

banc)). Here, the expert himself questioned whether it was possible. Plaisance had 

no experience or knowledge prior to investigating this incident to lead him to 

believe that it was possible and can point to no other authority on which to base 

such an opinion.

Defendants point to several other flaws or gaps in Plaisance’s analysis, such 

as that he did not perform a variety of other tests and he did not interview the 

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marine officer who first responded to the scene. While some of these reported 

shortcomings would merely go to the weight of the testimony, the court finds that

because of the other problems discussed above Plaisance has failed to fully support 

his conclusion that the fire was caused by the screen being occluded by marine 

growth. Plaintiff has not met its burden of showing by a preponderance of the 

evidence that Plaisance’s opinion stems from a reliable methodology, sufficient 

factual basis, and reliable application of the methodology to the facts.

B. Gary Jones

In Jones’ first report, he stated that the fire originated in the engine 

compartment in the vicinity of the aft end of the starboard engine. (Doc. 35-5, p. 7). 

Jones further stated in the first report that the most probable ignition theory 

involves the release of these searing gases as a result of a restriction of the cool 

water flow due to the marine growth.” (Doc. 35-5, p. 7). However, the report stated 

that “[u]ntil the scientific materials testing has been completed by Dr. Clark, the 

cause for this fire is being classified as undetermined.” (Doc. 35-5, p. 7). Jones 

stated that “[t]he investigation remains active and continued contact with Captain 

Plaisance and Dr. Clark will be maintained to complete any remaining tasks in an 

expedited manner.” In Jones’ final report he concluded that:

The cause for the fire is a result of insufficient intake seawater flow 

that is necessary to lower the internal hot exhaust gases in the 

exhaust FRP tube and elbow to a safe and acceptable operating level. 

The fiberglass tube is rated at approximately 259 degrees F and is 

connected to the riser and tube with rubber boots. The weak point in 

this system is at the connector and the release of hot gases here 

represents a significant hazard.

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It was concluded the lack of required maintenance and the marine 

growth on the external hull intake strainer/screen contributed to the 

reduced intake water flow that resulted in the failure of the exhaust 

tube. The escaping gases then ignited nearby combustibles that 

eventually involved the entire boat. The basis for this ignition theory 

is the exclusion of other ignition theories, physical damage patterns on 

the boat, photographic documentation and the analytical evaluation 

and interpretation of the evidence by industry experts Dr. Kendall 

Clark, John Moran of Hendrick Manufacturing, biologist Dottie Byron, 

Certified Marine surveyor Guy Plaisance and Marine technicians Tom 

Elliot and Ralph Holloway

(Doc. 35-7, p. 2). Jones’ later testified that if Dr. Clark and Plaisance were wrong, 

he would have to go back to his undetermined status. (Doc. 35-1, p. 5).

Jones’ reports indicate that the starboard intake screen was 

disproportionately occluded with marine growth. (Doc. 35-5, p. 6; Doc. 35-6, p. 3). 

However, as discussed above with regard to Plaisance’s opinion, Dr. Clarke actually 

found that the starboard intake screen was less occluded with marine growth than 

the port side intake screen.

Defendants also point out that Jones based his opinion on the exhaust tube 

being rated for 259 degrees Fahrenheit, when in fact it was rated for 350 degrees 

Fahrenheit. (Doc. 35-1, p. 6). Plaintiff contends that it does not matter which rating 

was used because the internal exhaust gases range from 900-1100 degrees 

Fahrenheit. (Doc. 32-2, p. 5). However, it is unclear what temperature the gases 

were after they had been cooled by whatever water came in through the screen. 

Jones’ report states that the water is supposed to lower the internal exhaust gases 

to an acceptable level for the exhaust elbows and tube and that “[a]n exhaust tube 

failure could result from the hot gasses not getting completely cooled...” (Doc. 32-2, 

p. 5). There has been no calculation or testing done to determine the approximate 

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temperature of the water flow or of the gases after being cooled by the reported 

reduced flow of water in the starboard engine. (Doc. 35-1, p. 12). Jones testified 

that the difference does not affect his opinion, but has not fully explained why it 

does not. (Doc. 53-5, p. 6).

Jones recommended to Plaisance that several items be inspected because 

they “will provide physical documentation to prove or disprove this theory.” (Doc. 

35-1, pp. 14-16). He requested that the turbocharge be inspected because that 

would “address possible issues such as exhaust gas, back pressure, insufficient 

cooling water through the cooler, faults in the engine fuel injection system due to 

incorrect adjustment.” (Doc. 35-1, p. 14). Jones testified that the Middleton 

mechanics were supposed to inspect the turbocharger but Jones does not know if it 

was ever done. (Doc. 35-1, pp. 15-16). Jones also does not know if Plaisance ever 

looked into the charge air cooler or faults in the engine fuel injection system due to 

incorrect adjustment or misalignment of a bearing or leakage in exhaust duct. (Doc. 

35-1, pp. 17-18). Jones admits that the water flow could be restricted for reasons 

other than the screen, such as through the charge air cooler or if a manufacturing 

defect resulted in a leak in the exhaust duct that persisted long enough. (Doc. 35-1, 

pp. 17-18). While all of the requested inspections may not have been necessary for 

Jones’ to come to a reliable conclusion, when it was determined that the starboard 

engine did not overheat as Jones and Plaisance originally believed, more testing or 

analysis was clearly needed to explain the circumstances.

Because of the above issues combined with Jones’ reliance on Plaisance’s 

analysis, which as discussed above was not adequately supported, the court finds 

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that Plaintiff has not met its burden of showing by a preponderance of the evidence 

that Jones’ opinion as to the cause of the fire is reliable. Jones himself reported

that the initial information was not sufficient for him to opine as to the cause of the 

fire. Jones later received information counter to his initial theory when it was 

determined that the starboard engine did not overheat and the starboard screen 

was not as obstructed by marine growth as the port side screen. Since Jones relied 

on Plaisance’s analysis, the court finds that Jones’ opinion as to the cause of the fire 

also does not stem from a reliable methodology, sufficient factual basis, and reliable 

application of the methodology to the facts.

CONCLUSION

For the reasons stated above, Defendants’ motions to exclude the expert 

testimony of Guy Plaisance and Gary Jones (Docs. 34 & 35) are GRANTED.

DONE and ORDERED this 5th day of November, 2014.

/s/ Callie V. S. Granade

UNITED STATES DISTRICT JUDGE

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