Kimora Washington, as administrator of the Estate of Kevin Ford v. GWR Management, LLC and GWR Flat Rock Partners, LLC
M.D. Ga.10/21/2025
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Full Opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
KIMORA WASHINGTON, as *
administrator of the Estate of
KEVIN FORD, *
Plaintiff, *
vs. * CASE NO. 4:24-cv-81-CDL
GWR MANAGEMENT, LLC and GWR *
FLAT ROCK PARTNERS, LLC,
*
Defendants. *
O R D E R
Defendants own and manage an apartment complex called The
Trails at Flat Rock in Columbus, Georgia. In October of 2022, a
fire occurred in Building A of the apartment complex. Kevin Ford,
who was staying in unit A-24 with tenant Anthony Thorpe, died in
the fire. Plaintiff, the administrator of Ford’s estate, asserts
negligence claims against Defendants based on Ford’s death,
alleging that Defendants’ negligence caused Ford’s death and pre-
death pain and suffering. Plaintiff intends to support these
claims with the expert testimony of Kevin Foster and Lisa Detter-
Hoskin. Defendants argue that the testimony of these two experts
should be excluded. For the reasons explained in the remainder of
this Order, the Court denies Defendants’ motions to exclude the
testimony of Foster and Detter-Hoskin. (ECF Nos. 56 & 57).
DISCUSSION
I. Standard for the Admissibility of Expert Opinions
Under Federal Rule of Evidence 702, the Court must serve as
the gatekeeper “to keep out irrelevant or unreliable expert
testimony.” United States v. Ala. Power Co., 730 F.3d 1278, 1282
(11th Cir. 2013) (citing Kumho Tire Co. v. Carmichael, 526 U.S.
137, 145 (1999) and Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579, 596 (1993)). “This gatekeeping role, however, ‘is
not intended to supplant the adversary system or the role of the
jury: “vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are the
traditional and appropriate means of attacking shaky but
admissible evidence.”’” Id. at 1282 (quoting Allison v. McGhan
Medical Corp., 184 F.3d 1300, 1311-12 (11th Cir. 1999)).
In evaluating the admissibility of expert testimony under
Rule 702, the Court must consider whether “(1) the 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 . . .; and (3) the testimony
assists the trier of fact . . . to understand the evidence or to
determine a fact in issue.” United States v. Frazier, 387 F.3d
1244, 1260 (11th Cir. 2004) (en banc) (quoting City of Tuscaloosa
v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1998)). Many
cases, particularly those involving opinion testimony that relies
on the scientific method, cite the traditional factors that courts
should consider when determining whether an expert’s methodology
is sufficiently reliable: “(1) whether the expert’s theory can be
and has been tested; (2) whether the theory has been subjected to
peer review and publication; (3) the known or potential error rate
of the technique; and (4) whether the technique is generally
accepted in the scientific community.” Adams v. Lab’y Corp. of
Am., 760 F.3d 1322, 1327 (11th Cir. 2014) (per curiam). These
factors, of course, represent a non-exhaustive list and “do not
constitute a definitive checklist or test.” Id. (quoting Kumho
Tire, 526 U.S. at 150). “While those factors may help in assessing
the reliability of scientific or experience-based expert
testimony, the district court’s ‘gatekeeping inquiry must be tied
to the facts of a particular case.’” Id. (quoting Kumho Tire, 526
U.S. at 150). To allow the testimony to be considered by the jury,
the Court must find that “it is properly grounded, well-reasoned,
and not speculative.” Frazier, 387 F.3d at 1262 (quoting Fed. R.
Evid. 702 advisory committee’s note to 2000 amendments).
II. Defendants’ Motion to Exclude Kevin Foster
Defendants seek to exclude the testimony of Plaintiff’s burn
expert, Dr. Kevin Foster. Foster is the Director of Burn Services
at the Diane & Bruce Halle Arizona Burn Center Valleywise Health.
Defs.’ Mot. to Exclude Foster Ex. A, Foster Report 2, ECF No. 57-
1 (“Foster Report”). Foster, a medical doctor who has specialized
in burn care since 1999, opines that Ford’s death was caused by a
combination of smoke inhalation and burn injury, as opposed to
solely smoke inhalation injury. Id. at 7. Foster also concluded
that Ford suffered conscious pain and suffering from his burns
before his death. Id. at 8. Foster stated that he made these
conclusions to a reasonable degree of medical certainty based on
his education, training, and experience. Id. Defendants do not
argue that Foster lacks the education, training and skill to reach
an opinion on Ford’s cause of death and whether he experienced
conscious pain and suffering, but they do assert that his testimony
should be excluded as unreliable.
Defendants contend that Foster’s testimony should be excluded
as unreliable because Foster’s opinions are speculative and not
based on reliable principles that would assist the trier of fact.
Specifically, Defendants argue that Foster failed to use reliable
principles in arriving at his conclusion that Ford endured
conscious pain and suffering because in forming his opinions Foster
made improper assumptions about an unlocked window lock in Ford’s
bedroom window and Ford’s body position at the time of his death.
Defendants also contend that Foster did not adequately account for
Ford’s blood alcohol content at the time of his death.
To prepare his report, Foster relied on the Georgia Bureau of
Investigation’s (“GBI”) autopsy report and photographs, the
Muscogee County Coroner’s Report, Columbus Fire Department and
Columbus Police Department reports and photographs, Thorpe’s
deposition, and other photographs from the fire scene. Id. at 2.
Defendants do not appear to challenge Foster’s basic methodology,
which was to consider all the medical records, photographs, and
reports available to him and determine Ford’s cause of death based
on that information and his training, experience, and skill as a
burn care physician. Rather, Defendants challenge Foster’s
conclusions—including his conclusion that Ford was conscious at
the time of the fire and experienced pain and suffering due to
burns before he died. According to Defendants, Foster
misinterpreted the evidence and reached the wrong conclusions
about whether Ford was asleep at the time of the fire. Foster,
though, explained why he interpreted the evidence as he did and
how he reached his conclusions that Ford was conscious and trying
to escape the fire when he suffered burns. The Court finds that
Defendants’ criticisms of Foster’s testimony go to its weight, not
its admissibility. Thus, based on the present record, the Court
does not find that Foster’s methodology was unreliable.
Defendants also criticize Foster’s analysis as a “cut and
paste job” because Foster mistakenly referred to a “Mr. Noble” in
two places in his report on Ford. Id. at 6-7. Defendants argue
that these mistakes show that Foster did not consider whether Ford
suffered conscious pain and suffering. As Defendants acknowledge,
though, Foster explained during his deposition that he made typos
in his report but that he reached the conclusions as to Ford based
on the evidence he considered. The Court declines to exclude
Foster’s testimony because of the mistakes in his report.
Defendants may certainly address these mistakes and any other
perceived weaknesses in Foster’s analysis through a vigorous cross
examination. For these reasons, Defendants’ motion to exclude
Foster (ECF No. 57) is denied.
III. Defendants’ Motion to Exclude Lisa Detter-Hoskin
Defendants also seek to exclude the testimony of Plaintiff’s
rebuttal expert, Lisa Detter-Hoskin. Plaintiff hired Detter-
Hoskin to rebut certain opinions offered by Richard Jones,
Defendants’ fire investigation expert who evaluated the origin and
cause investigation conducted by Plaintiff’s expert, Keith Bell.
Defendants argue that Detter-Hoskin’s opinions are outside the
scope of permitted rebuttal testimony under the Federal Rules of
Civil Procedure. A party may file a rebuttal expert report “if
the evidence is intended solely to contradict or rebut evidence on
the same subject matter identified by another party.” Fed. R.
Civ. P. 26(a)(2)(D)(ii). Neither the Rules nor the Eleventh
Circuit has defined the scope of what is considered the “same”
subject matter; however, “[t]he purpose of rebuttal evidence is
‘“to explain, repel, counteract, or disprove the evidence of the
adverse party.”’” United States v. Gold, 743 F.2d 800, 818 (11th
Cir. 1984) (quoting United States v. Delk, 586 F.2d 513, 516 (5th
Cir. 1978)).
Courts have disallowed the use of a rebuttal expert if the
expert’s testimony is an attempt to introduce evidence more
properly as part of a party’s case-in-chief. SIL-FLO, Inc. v.
SFHC, Inc., 917 F.2d 1507, 1515 (10th Cir. 1990). “[R]ebuttal
evidence may be used to challenge the evidence or theory of an
opponent —and not to establish a case-in-chief.” Marmo v. Tyson
Fresh Meats, Inc., 457 F.3d 748, 759 (8th Cir. 2006). But “[t]he
fact that testimony would have been more proper for the case-in-
chief does not preclude the testimony if it is proper both in the
case-in-chief and in the rebuttal.” United States v. Luschen, 614
F.2d. 1164, 1170 (8th Cir. 1980). A rebuttal report may not
advance a completely new legal theory, but courts must examine the
primary expert reports to determine whether the rebuttal report is
truly “new” or merely uses different terminology to address issues
that were raised in the primary expert reports. 103 Invs. I, L.P.
v. Square D Co., 372 F.3d 1213, 1217-18 (10th Cir. 2004) (finding
that a rebuttal report responded to the “thrust of” the primary
experts’ analyses and did “not represent a new theory”).
Defendants hired Richard Jones to review the origin and cause
investigation performed by Plaintiff’s expert, Keith Bell. Defs.’
Mot. to Exclude Detter-Hoskin Ex. A, Jones Report 4, ECF No. 56-2
(“Jones Report”). Jones opined that “[r]econstruction efforts
demonstrate that the damage to the backsplash [in the apartment
where the fire allegedly started] was most likely the result of
exposure to the burning potholder, which dropped down onto the
range during the collapse of cabinetry and contents above.” Jones
Report 47. Jones also testified that he believed the damage to
the range’s backsplash and the back part of the range was caused
by either direct flame impingement, radiant heat, or conductive
heat coming from the left side of the range. Jones Dep. 211:2-
11, ECF No. 48-6. Plaintiff then hired Lisa Detter-Hoskin as a
rebuttal expert “to assess the opinions offered by fire
investigator Rick Jones regarding the cause of the damage to the
back plate of the cooking range.” Defs.’ Mot. to Exclude Detter-
Hoskin Ex. B, Detter-Hoskin Report 5, ECF No. 56-3 (“Detter-Hoskin
Report”).
Defendants argue that Detter-Hoskin’s testimony does not
rebut Jones’s opinions as to the cause of the damage to the
backplate of the cooking range because Jones did not “opine as to
what caused the damage to the back plate of the range.” Defs.’
Mot. to Exclude Detter-Hoskin 6, ECF No. 56-1. As discussed above,
though, he did.1 Jones further concluded that the fire originated
outside the kitchen of A-23, that Bell did not consider the role
1 Based on the Court’s review, it appears that Jones used the term
“backsplash” for the same area of the range that Detter-Hoskin called
the “back plate.”
that flame impingement, radiant heat transfer, and drop down had
in the fire’s development, and that the backsplash and back part
of the range were damaged either by direct flame impingement,
radiant heat, or conductive heat. Jones Report 74, 76; Jones Dep.
211:2-11. After examining and analyzing materials from the kitchen
of unit A-23, Detter-Hoskin opined that “the damage to the cooking
range back plate and aluminum backsplash was not the result of the
direct flame impingement, radiant heat, or conductive heat from
the fall down debris located to the left of the stove.” Detter-
Hoskin Report 6. Thus, Detter-Hoskin’s conclusions directly
contradict Jones’s opinions as to the cause of the damage to the
stove backsplash and back part of the range detailed in Jones’s
report and deposition. Accordingly, the Court finds that Detter-
Hoskin is a proper rebuttal expert under Rule (26)(a)(2)(D)(ii).
Defendants’ motion to exclude Detter-Hoskin (ECF No. 56) is denied.
CONCLUSION
For the reasons explained above, the Court denies Defendants’
motions to exclude the testimony of Kevin Foster and Lisa Detter-
Hoskin (ECF Nos. 56 & 57).
IT IS SO ORDERED, this 21st day of October, 2025.
S/Clay D. Land
CLAY D. LAND
U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA Case Information
- Court
- M.D. Ga.
- Decision Date
- October 21, 2025
- Status
- Precedential