The case is TRAX, LLC v. Continental Cas. Co., 2012 WL 377042 *7 (N.D. Ill. August 29, 2012). PACER, the online docket of the Federal Courts, reflects that Continental filed a Notice of Appeal on September 5, 2012, which has not been resolved as of today.
In TRAX, LLC v. Continental Cas. Co., 2012 WL 377042 (N.D. Ill. August 29, 2012), Download Trax, LLC v. Continental Cas. Co. (N.D. Ill. Amended Memorandum Opinion and Order Filed Aug. 29, 2012) PUBLIC ACCESS, the Policyholder, TRAX, settled an underlying lawsuit against it. Continental refused to pay for the settlement, contending that at least part of the settlement is attributable to a claim not covered by its Global Technology Errors & Omissions Policy.
The coverage issue was allocation: How much of the underlying settlement, if any, was allocable to covered claims?
Continental relied on the Testimony of an Expert whose Opinion was that the underlying settlement should be apportioned 50-50 between covered and noncovered claims. The District Court granted TRAX's Motion to Exclude the Continental Expert's Testimony, however.
TRAX's Motion was granted in part on the grounds that the Expert in question never spoke to anyone who was at the Settlement Conference in the underlying case and the Expert did not "read the participants' depositions prior to preparing his written opinion." TRAX, LLC v. Continental Cas. Co., 2012 WL 377042 *7 (N.D. Ill. August 29, 2012). [Emphasis added.]
The evidence rule which governed this decision is Federal Rule of Evidence 702. That Rule provides in part that an Expert Witness may testify to Opinions or otherwise if "the testimony is based on sufficient facts or data" .
The Court granted the Plaintiff's-Policyholder's Motion to Exclude the Testimony of Continental's Expert in this case on the ground that the Testimony was "irrelevant and appeared to not be based on sufficient information". The Testimony therefore "failed to meet the requirements of Fed.R.Evid. 702." TRAX, LLC v. Continental Cas. Co., 2012 WL 377042 *7 (N.D. Ill. August 29, 2012).
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