FOURTEEN FOR THE EXPERTS: NEW INSURANCE CASES THAT MAKE EXPERT WITNESS LAW ....

 

.... TWO MORE.

    In a change-of-pace, Insurance Claims and Bad Faith Law Blog and Insurance Claims and Issues Weblog will carry consecutive posts addressing a single common theme:  Court rulings on Expert Witness Testimony and Reports in recent Insurance Cases.  For the previously developed rules of law and judicial decisions on these issues, see generally as to Liability Insurance Cases, volume 1 Dennis J. Wall, Litigation and Prevention of Insurer Bad Faith § 8:17 (West Publishing 3d ed. 2011; 2012 Supplement in process), and see generally as to all types of First-Party Insurance Cases, volume 2 id. § 12:18.

 

 Expert Witness Testimony:  Reliability is Required.

    Many criteria are generally accepted as measurements of the reliability of scientific testimony.  Even when the criteria are different from Court to Court, including between Federal Courts and State Courts, there are generally accepted measurements of the reliability of scientific testimony when it is offered at Trial.

   In "the area of non-scientific, experience-based testimony, while these same criteria may be used to evaluate its reliability, sometimes other factors may prove more useful."  Clena Investments, Inc. v. XL Specialty Insurance Co., 2012 WL 266422 *8 (S.D. Fla. January 30, 2012)(Rosenbaum, USMJ), Download Clena Investments, Inc. v. XL Specialty Insurance Co. (S.D. Fla. Case No. 10.62028, Order of USMJ Filed Jan. 30, 2012) PUBLIC ACCESS.  What those factors may be in a given case, will vary from case to case in which "non-scientific, experience-based testimony" is offered from  Expert Witnesses.

   For example, in the Clena case itself, one Calitu testified that his analysis of Hurricane Wilma Damage sustained by Plaintiff Clena Investments, Inc. depended in part on a "six-factor chart".  The Court held that the chart was unreliable evidence and struck Mr. Calitu's Opinion in his Report to the extent that he relied on that chart in reaching his Opinion.  Id. at *10.

   However, Mr. Calitu also based his Opinion on "his training, experience, and inspection of the Property to opine that it is more likely that Hurricane Wilma imposed the Property damage than that any prior hurricane did."  To that extent, based on his own "training, experience, and inspection of the Property," Mr. Calitu's Opinion that the Plaintiff sustained damage from Hurricane Wilma was held admissible in that case.  Id. at *10.

 

When Reliability is Not Enough:  Disclosure Deadlines Must Be Met or There May Not Be Any Expert Testimony.

   In another case another United States Magistrate Judge in the Southern District of Florida faced a request to allow an Expert to testify even though the Expert was not timely disclosed, his Report was untimely provided, and he could not in any stretch of the Court's imagination be deemed a "rebuttal" Expert in this case.  Kendall Lakes Towers Condominium Ass'n v. Pacific Insurance Co., 2011 WL 63272198 * 1 (S.D. Fla. December 20, 2011)(Goodman, USMJ:  "This is an insurance coverage dispute concerning the issue of whether there is coverage for property damage allegedly arising from Hurricane Wilma on or about October 24, 2005."), Download Kendall Lakes Towers Condominium Assn v. Pacific Ins. Co. (S.D. Fla. Case No. 10.24310, Order of USMJ Filed Dec. 20, 2011) PUBLIC ACCESS.  The Defendant understandably was not amused and requested that the Expert be precluded from testifying.

  The Court set the scene by laying down the law:

Evaluating a preclusion request involves an analysis of several factors, including the history of the litigation, the proponent's need for the challenged evidence, the justification (if any) for the late disclosure and the opponent's ability to overcome its adverse effects (i.e., the degree of prejudice and whether it can be cured or ameliorated.

Id. at *3.

   These things factor into a standard of discretion, said the Magistrate Judge.  The Expert was allowed, with restrictions.  These are the restrictions, reasonably tied, it certainly appears, to being allowed to present the Expert's Opinion Testimony in this case under these circumstances:

1. If Plaintiff intends to use the Expert in question at Trial, then within 7 days of the Court's Order the Plaintiff was required to submit to the Defendant Insurance Company "an amended or supplemental expert report, in compliance with all the disclosure requirements."
2. The Defendant could take the Expert's Deposition within 1 month after this decision.
3. If the Defendant took this Expert's Deposition, the Plaintiff would pay the Expert's fee for this Deposition, and the Court Reporter fees, and the attorney's fees and costs incurred by the Defendant "in preparing and taking" this Deposition.
4. If the Defendant chose to obtain a Rebuttal Expert in response to this particular Plaintiff's Expert, it was allowed 1 month and 10 days, or a total of 41 days, after this decision to do so.
5. Finally, in part here pertinent, if the Plaintiff wished to depose the Defendant's Rebuttal Expert in question, then the Plaintiff could do so within 1 month and 20 days, or a total of 52 days, after this decision provided that  the Plaintiff would bear "the typical costs" and pay the Defendant's Rebuttal Expert's fee both for Deposition time and for time spent in preparing for this Deposition.

Id. at *5.

   Clearly, Expert Witness Testimony must be reliable -- and timely disclosed in accordance with applicable Court Orders and Rules.

 

Part of  a Series.  To be continued ....

 

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