In a recent decision, Florida's First District Court of Appeal affirmed exclusion of an Insurance Expert's opinions. The decision was 2-to-1 on most appellate issues, but it was unanimous on the issue of excluding an Insurance Expert's opinion based only on conversations with the party's lawyer: Doctors Co. v. State of Florida, Department of Insurance as Receiver of Caduceus Self-Insurance Fund, Inc., 31 Florida Law Weekly D2341 (Fla. 1st DCA September 13, 2006). The decision can also be accessed for free at Doctors Co. case (Fla. 1st DCA site).
The proferred opinions of the Insurance Expert were based in part on "conversations he had with Appellant's attorney". All four judges considering the admissibility of opinions based only on this source -- the trial judge and all three appellate judges -- agreed that those opinions would never be stated in a courtroom.
The First District majority opinion announced the legal reasons. The majority noted, first, that to the extent the Insurance Expert's opinions were based only on discussions with a lawyer, the opinions were inadmissible hearsay. "The rule is well-established that if an expert is called merely as a conduit to place inadmissible evidence before the jury, the trial court appropriately exercises its discretion by excluding such evidence."
Further, an Insurance Expert does not reasonably rely "on information provided by Appellant's counsel" to support his or her proferred opinions, said the First District majority. For that reason, too, such opinions on Insurance issues were properly excluded from evidence in that case.
In short, if the opinion of an Insurance Expert is going to be admissible in evidence, it cannot be based only on a chat, however long, with a party's lawyer. Regardless of how long or how detailed such a conversation or conversations might be, what a lawyer told that Insurance Expert was not enough for the jury to hear those opinions. "An expert opinion is inadmissibile where it is apparent that the opinion is based on insufficient data."
For a recently published article on Expert Witnesses in Insurance Cases (no subscription required to this version), you can access Experts.DaubertONLINE.pdf.
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