Claims And Issues

EXPERTS ON ICE: EMPLOYMENT ALONE NOT IN THE STRIKE ZONE.

In Roy v. County of Los Angeles, No. CV 12-09012-AB (FFMx), 2018 WL 914773 (C.D. Cal. February 7, 2018), Immigration and Customs Enforcement ("ICE") and several of its officials are the defendants in the Gonzalez Action, hence, the Court refers to them as the "Gonzalez Defendants" in its opinion.

The Gonzalez Defendants filed a motion to strike the testimony of three of the plaintiff's experts.  Each of the three experts had been attorneys either with ICE or with the U.S. Citizenship and Immigration Services.  They listed their previous employment among their qualifications to express opinions concerning immigration detainers issued by ICE and at issue in the case. Immigration detainers are "holds" placed by ICE on the release of persons held in the custody of law enforcement agencies, usually for 48 hours allowing ICE that time to come and get them.

Unfortunately for the success of the Gonzalez Defendants' motion to strike the experts' testimony, they could not and did not point to any specific thing that the experts included in their testimony that should be kept secret as privileged.  Instead, the Gonzalez Defendants argued that the mere fact, standing alone, that the three experts were previously attorneys for ICE or for USCIS meant automatically that everything they could say in the case should be barred as privileged.

The District Court disagreed with that argument in this case.  Instead, the Court ruled that the Gonzalez Defendants assumed the burden to show that the plaintiffs' experts' testimony should be barred because of some specific privilege, but that the Gonzalez Defendants failed to meet that burden here:

    In the Gonzalez Defendants’ Motion to Strike, Defendants do not cite any particular statement from the expert witness declarations that are protected or privileged under any legal basis. (Mot. to Strike at 11–12.) Defendants argue that each of the expert witnesses had access to privileged information during their employment with DHS, and that DHS cannot tell whether their declarations include such information, and that therefore, the declarations should be stricken in their entirety. (Mot. to Strike at 11–12.)  However, the fact that Defendants cannot determine whether the declarations include any privileged or protected information highlights that Defendants have not met their burden of establishing that the declarations contain privileged information.

    It is Defendants’ burden “to demonstrate that the privilege applies to the information in question.” [Citations omitted.]   Defendants’ failure to identify any information contained in the declarations that is privileged or subject to the work product doctrine, and their admission that they cannot point to specific information that is protected or privileged, warrants denial of Defendants’ Motion to Strike on the basis of privilege or protection grounds. 

Roy v. County of Los Angeles, No. CV 12-09012-AB (FFMx), 2018 WL 914773, at *13 (C.D. Cal. February 7, 2018) (emphasis added).

If this ruling is applied to an insurance case, the roles of the Gonzalez Defendants might be played by an insurance company and officials in its branch, regional, and home office claims departments.  The plaintiff Gonzalez might be played by another plaintiff, perhaps also named Gonzalez, but in the role of a policyholder suing the insurance carrier.  If in that case Gonzalez retained experts who used to be employed at or retained by the carrier, then any motion by the carrier to strike their testimony would, under this ruling, have to specifically identify what if any portion of their testimony was based on specific information that is protected or privileged, or have the motion denied as it was in this case.

Please Read The Disclaimer.  ©2018 by Dennis J. Wall.  All Rights Reserved.

"REDACTED!" SO, THE EXPERTS TESTIFIED [REDACTED].

In Waldrup v. Countrywide Financial Corp., Case Nos. 2:13-cv-08833-CAS (AGRx) and 2:16-cv-04166-CAS (AGRx), 2018 WL 799156 (C.D. Cal. February 6, 2018) (Snyder, USMJ), a ruling partially reported in [REDACTED] CIVIL MINUTES - GENERAL, even the experts' reports were redacted, meaning blacked out so that the public could not see them.  Totally.  All their testimony.  Not even a smidgen left behind for just anyone to see, including the public that pays for the courts.   Parenthetically, that did not stop the Court from granting the plaintiffs' joint motion for class certification in that case.

This practice stands out as cautionary authority for keeping quiet any expert testimony and expert reports on file in insurance cases.  That includes of course cases revolving around unfair claims practices allegations, insurer bad faith claims, and even coverage where expert testimony is allowed.

Nice work if you can get it, as they say.  Commit the crime, do the deed, and then skip the apology step that is the favorite go-to in 2018, and just cover it up.  Courts following this case will have your back.

But at least they will avoid embarrassment that way.  Some seem to hold the view that that is what courts were made for.

Today is Lincoln's Birthday!

Dennis Wall is at work on a book that will reveal how concealed evidence and secret settlements take our money, foreclose on our homes, and affect our lives.  It will be his fifth book.

Please Read The Disclaimer.  ©2018 by Dennis J. Wall.  All Rights Reserved.

INTERPRETATION OF AN INSURANCE POLICY? ONLY ONE OPINION MATTERS.

In Owens v. Metropolitan Life Ins. Co., ___ F. Supp. 3d ___, No. 2:14-CV-00074-RWS, 2016 WL 5868103 (N.D. Ga. September 27, 2016), the Court was confronted with a motion to exclude the expert witness testimony of a respected law professor named Jeffrey W. Stempel.  The Court in that case side-stepped ruling on the motion to exclude, but instead resolved the parties' competing motions for summary judgment first.  This made it unnecessary to reach the motion to exclude, the District Judge said.

The Court in that case ruled on "interpretation of the unambiguous language of the Policy" without consulting Professor Stempel's expert report.  Owens v. Metropolitan Life Ins. Co., ___ F. Supp. 3d ___, No. 2:14-CV-00074-RWS, 2016 WL 5868103, at *9 (N.D. Ga. September 27, 2016).

The District Judge added:  "Had, however, reliance on Professor Stempel's report been necessary, the Court finds no basis for his exclusion as an expert."

Please Read The Disclaimer.  ©2016 by Dennis J. Wall.  All Rights Reserved.

"INSURANCE CLAIMS AND ISSUES," THE BOOK: COMING IN 2016!

 

 Storm Clouds lined up over the Gulf of Mexico.  Photograph and text copyright 2015-2016 by Dennis J. Wall.

I am hard at work on an anthology of the best blogs from "Insurance Claims and Issues."  The anthology I submit to my publisher will keep all hyperlinks intact, including links to the Insurance Claims and Bad Faith Law blog.  When articles posted on Insurance Claims and Bad Faith Law blog are important to the anthology of "Insurance Claims and Issues," I am including them in the anthology too.

As each previously posted article is updated, the posted articles will remain just as available here as they always have been.  New articles will benefit from me being better informed and better equipped to discuss future insurance claims and issues.

I have contracted with Thomson Reuters (West Publishing Company to those fortunate to have the experience) to publish "Insurance Claims and Issues," the Book, in the late Spring or early Summer of 2016.  Best wishes to everyone for a joyous and Happy New Year!

Please Read The Disclaimer.  ©2016 by Dennis J. Wall, author of "Insurance Claims and Issues" (forthcoming Thomson Reuters 2016).  All rights reserved.

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EXPERTS' OPINIONS BASED ON HOMEOWNER'S CONCLUSION FACT-LESS AND WEIGHTLESS.

A Washington State appellate court issued an "Unpublished Opinion" which was made available by Westlaw in Firey v. Orozco, No. 33232-2-III, 2015 WL 5893664 (Wash. Ct. App., Div. 3, October 1, 2015).  The appellate court's decision was to affirm the trial court's crucial refusal to give any weight to the opinions of two experts retained by the plaintiff homeowner.  Although the trial judge read these opinions, the trial court gave them little weight before granting the defendants' ultimately dispositive motion for summary judgment.

The trial court ruled that because the two experts relied on the homeowner's opinion that the defendants' construction work was defective, and because the homeowner's opinion was inadmissible since she was not qualified to render it nor was it a fact, both experts' opinions were entitled to no weight.   Firey v. Orozco, No. 33232-2-III, 2015 WL 5893664, *4 (Wash. Ct. App., Div. 3, October 1, 2015).

The reasons for the appellate court's affirmance of the trial court's ruling are all set forth here:

Here, the trial court considered the experts' declarations, but determined that the facts underlying the opinions were too speculative and therefore the opinions were insufficient to create a genuine issue of material fact. We agree. There is a central deficiency in these experts' declarations: It is obvious that both experts rely on the undocumented recollections of Ms. Firey as to the scope of work performed by each defendant and the resulting condition of the house after each defendant ceased its work. Neither expert saw the house immediately after Ms. Firey fired K & T Construction or after Crown Mobile ceased working. The pictures supposedly supporting their opinions are undated. The inadequacies of the two experts' factual foundations are further heightened by the undisputed fact that the two experts did not make any personal observations concerning either defendant's work until after several other contractors performed work, resulting in the likely alteration of K & T Construction's and Crown Mobile's work. Similar to Miller [Miller v. Likins, 109 Wash. App. 140, 149, 34 P.3d 835 (Wash. Ct. App. 2001)], we hold that the trial court properly determined that the experts' opinions were speculative because they lacked an adequate factual foundation and were, therefore, insufficient to create a genuine issue of material fact.

Firey v. Orozco, No. 33232-2-III, 2015 WL 5893664, *7 (Wash. Ct. App., Div. 3, October 1, 2015).

Although these rulings came in an "Unofficial Opinion," and although they did not come in an insurance case, the rulings both of the trial court and of the Washington State appellate court are persuasive and in line with rulings on expert testimony in insurance cases across the nation.

Please Read The Disclaimer.  ©2015 by Dennis J. Wall, author of Litigation and Prevention of Insurer Bad Faith (3d ed. Thomson Reuters West in 2 Volumes, with 2015 Supplements), including Sections 8:17 and 12:18 addressing the issues surrounding expert testimony.  All rights reserved.

NEVADA UNTIMELY DISCLOSURE OF EXPERT IN FEDERAL COURT LEADS TO DISQUALIFICATION.

International Space Station's "Good Morning" Wakeup to Western United States.  Image Courtesy of NASA.


The Federal Court in Nevada emphasized that the plaintiff in the case of Cohan v. Provident Life & Accident Ins. Co., No. 2:13-cv-00975-LDG(CWH), 2015 WL 5458682 (D. Nev. Signed September 16, 2015), is a medical doctor.  The District Judge emphasized this fact to in turn emphasize the Magistrate Judge's conclusion in the case that the plaintiff was intimately involved in discovery, presumably including the discovery dispute at issue in this decision.

The nature of the plaintiff's occupation ultimately had no effect whatsoever on the outcome of the defendant's motion to disqualify a late-filed plaintiff's expert witness.

Here is how that discovery controversy came about.  Think about the events involved during these timeframes to "see" what the parties, the Magistrate Judge and the District Judge, and the other lawyers in the case had to think about at the time.

The plaintiff changed treating physicians a little less than one month before the parties were due to designate experts under a Court Order.

Plaintiff's attorney became aware of the change a little later, some 3 weeks before the deadline.

The lawyer first arranged a meeting with the new treating physician-expert nearly 4 weeks after the deadline passed.

The new treating physician-expert was still not designated as of the time that the lawyer met with him.  At their meeting, the expert told the lawyer that he, the treating physician-expert, was not yet in a position to give an opinion when or whether the plaintiff would be able to work.  Cohan v. Provident Life & Accident Ins. Co., No. 2:13-cv-00975-LDG(CWH), 2015 WL 5458682, *1 (D. Nev. Signed September 16, 2015).

By this time, seven or eight weeks had passed, depending on which starting point is used, whether the starting point is the date the new expert was retained or the date when the attorney found out that the new expert was retained.  The next thing that happened was that the plaintiff's attorney and the defendant's attorney agreed to request an extension of the deadlines for discovery and for the filing of dispositive motions.  According to the District Judge who later reviewed the record, the lawyers acknowledged in their stipulation that the deadlines for designating experts had already passed and that their stipulation would not extend the deadlines for designating experts.

Nearly a month more passed after the stipulation was filed jointly requesting that the parties' deadlines for discovery and for filing dispositive motions be extended.  Then, the plaintiff's attorney filed a "Supplemental Disclosure of Expert Witnesses, designating [the new treating physician] as an expert …."  Cohan v. Provident Life & Accident Ins. Co., No. 2:13-cv-00975-LDG(CWH), 2015 WL 5458682, *1 (D. Nev. Signed September 16, 2015).

The defendant filed a motion to strike the supplemental disclosure.  The Magistrate Judge held a hearing on the motion.  The Magistrate Judge entered an order that the motion be granted, and the plaintiff objected.  On review by the District Judge of the Magistrate Judge's order, the plaintiff argued on the basis of two unpublished decisions, one authored by the same Magistrate Judge in a different case, and one decided by a Federal Court in California.  As the District Judge viewed these two decisions, neither one stood for the propositions for which the plaintiff submitted them.  Cohan v. Provident Life & Accident Ins. Co., No. 2:13-cv-00975-LDG(CWH), 2015 WL 5458682, *1 (D. Nev. Signed September 16, 2015).

The District Judge relied instead on a decision of the Ninth Circuit Court of Appeals and denied the plaintiff's objection to the Magistrate Judge's order that the admittedly late-designated expert should be stricken.

 Please Read The Disclaimer.  ©2015 by Dennis J. Wall, author of Litigation and Prevention of Insurer Bad Faith (3d ed. Thomson Reuters West in 2 Volumes, with 2015 Supplements), including Sections 8:17 and 12;18 addressing Expert Witness issues in third-party and first-party insurance cases, respectively.  All rights reserved.

EXPERT PHYSICIAN BASES CAUSATION OPINION ON PLAINTIFF'S ACCOUNT, WITNESS EXCLUDED.

The case of Carmody v. State Farm Mut. Auto. Ins. Co., No. 6:14-cv-830-Orl-37KRS, 2015 WL 5542534 (M.D. Fla. September 18, 2015) is not being decided in a vacuum.  The plaintiff in that case claims uninsured motorist benefits from the defendant.  After entering a Case Management and Scheduling Order which set out deadlines including for expert witness disclosure as is usual under such orders, the Court sanctioned the plaintiff "for his untimely and insufficient expert witness disclosures" including by limiting the testimony of one Dr. Masson, whom the plaintiff disclosed as a "treating physician," to "'opinions formed based on observations made during the course" of Dr. Masson's treatment of the plaintiff.  Carmody v. State Farm Mut. Auto. Ins. Co., No. 6:14-cv-830-Orl-37KRS, 2015 WL 5542534, *1 (M.D. Fla. September 18, 2015).

After taking Dr. Masson's deposition, the defendant filed a motion to exclude his opinion testimony on causation.  Dr. Masson testified in his deposition that he relied on an MRI study done on a date he did not know when, and on "the history provided to him by Plaintiff."  Dr. Masson further testified that he did not review the plaintiff's prior medical reports or the plaintiff's medical history, and that he did not talk to plaintiff's "prior doctors of therapists before making his causation opinion."  Carmody v. State Farm Mut. Auto. Ins. Co., No. 6:14-cv-830-Orl-37KRS, 2015 WL 5542534, *3 (M.D. Fla. September 18, 2015).

The Court observed that "Courts frequently exclude causation opinion testimony from expert witnesses who -- like Dr. Masson -- based their opinions on a plaintiff's account of the facts without consideration of other possible causes of an injury."  Carmody v. State Farm Mut. Auto. Ins. Co., No. 6:14-cv-830-Orl-37KRS, 2015 WL 5542534, *3 (M.D. Fla. September 18, 2015).  The Court was aware too of Dr. Masson's testimony that "the injuries he found during his physical examination of Plaintiff were 'consistent with the story the patient gave [him].'"  Carmody v. State Farm Mut. Auto. Ins. Co., No. 6:14-cv-830-Orl-37KRS, 2015 WL 5542534, *3 n.3  (M.D. Fla. September 18, 2015).

Based on the law, "and a careful review of the record -- particularly Dr. Masson's deposition," the Court granted the defendant's motion in this insurance case.

Please Read The Disclaimer.  ©2015 by Dennis J. Wall, author of Litigation and Prevention of Insurer Bad Faith (3d ed. Thomson Reuters West in 2 Volumes, with 2015 Supplements).  All rights reserved.  

EXPERTS IN AN INSURANCE CASE: GENERAL RULES AND A SPECIFIC CASE.

Stormy Seas in the Stars/NASA

In Seahorn Investments, LLC v. Federal Ins. Co., No. 1:13CV320-HSO-RHW, 2015 WL 5297264 (S.D. Miss. September 10, 2015), the Court applied all the recognized requirements of designating expert witnesses and providing their reports and conducting the examinations that lead to their proffered opinions.

The District Judge was confronted with motions to exclude the testimony of three of Plaintiff Seahorn's proffered experts named Stuart, Gurtler and Lyon in a case in which the plaintiff claimed insurance coverage for damages after Hurricanes Katrina and Isaac had passed through.  In passing upon the motions to exclude, the District Judge seems to have reproduced much of the experts' respective reports and deposition testimony.

The proffered expert testimony of Mr. Stuart on causation was excluded and Mr. Stuart himself was excluded as an expert witness in the case.  Primarily, the record showed to the District Judge very clearly that someone else wrote Mr. Stuart's report.  The court referred to his report being "ghost written," but by any name the report was written by someone other than Mr. Stuart.  Seahorn Investments, LLC v. Federal Ins. Co., No. 1:13CV320-HSO-RHW, 2015 WL 5297264, *9-*10 (S.D. Miss. September 10, 2015).  Mr. Stuart's "Supplemental Report" was no help to him and his testimony surviving the motion to exclude, because in the eyes of the District Judge, Mr. Stuart's Supplemental Report in this case should have been disclosed and produced either with Seahorn's initial expert disclosures at the outset of the case or at the latest by the expert designation deadline.

Next in line came the defendants' motion to exclude Mr. Gurtler and his expert testimony.  The District Judge granted the motion to exclude to the extent that Mr. Gurtler based his own expert testimony on Mr. Stuart's now-excluded opinion reports and examination, which appear to have related primarily to alleged failure of trusses.  However, the court denied the motion to exclude Mr. Gurtler's opinions relating to "the cause and cost of damages to the interior flooring (as opposed to the trusses)."  Seahorn Investments, LLC v. Federal Ins. Co., No. 1:13CV320-HSO-RHW, 2015 WL 5297264, *12-*13 (S.D. Miss. September 10, 2015).

Last but not least, the court dealt with the defendants' motion to exclude the remaining expert, Mr. Lyons, and his expert testimony.  Although the court in this case announced that it was ruling to grant the motion to exclude in part and deny it in part, the court apparently did not state which part of Mr. Lysons's proffered expert testimony would be excluded.  The District Judge made it clear as to which part of the Lyons testimony would not be excluded at this stage, namely, Mr. Lyons's testimony as to the "flooring" which relied on Mr. Gurtler's' "damages assessments on the flooring."

 It is noteworthy that the Gurtler-Lyons shared damages assessments appear to have involved use of "the Xactimate computer software."  Seahorn Investments, LLC v. Federal Ins. Co., No. 1:13CV320-HSO-RHW, 2015 WL 5297264, *13-*14 (S.D. Miss. September 10, 2015).

See also 1 Dennis J. Wall, Litigation and Prevention of Insurer Bad Faith § 8:17, Experts in Third-Party Insurance Bad Faith Cases:  Specific Cases and General Rules (Thomson Reuters West 2011, 2015 Supplement); 2 id. § 12:18, Experts in First-Party Insurance Bad Faith Cases:  Specific Cases and General Rules.

Please Read The Disclaimer.  ©2015 by Dennis J. Wall.  All rights reserved.  No Claim to Original U.S. Government Works.  Listen to a special podcast of "Litigation and Prevention of Insurer Bad Faith" here.

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WHEN CARRIERS COLLIDE: DISCOVERING EXPERTS' INVESTIGATION OF SANDY CLAIMS.

Insurance carriers should always be prepared by retaining experts who are not just experienced in publicly presenting themselves and their testimony about the particular claim, but who also understand what is involved in investigating claims of the kind involved in the particular case.         

    Further, it has been held that the parties, particularly the insurance companies who retain these experts, should be prepared to provide appropriate discovery concerning them, as well as being prepared to provide discovery concerning their investigations and evaluations in the case.  For example, it has been held that insurance companies handling catastrophe claims after Sandy were required to provide the following requested production:

 

any drafts, redlines, markups, reports, notes, measurements, photographs and written communications related thereto—prepared, collected or taken by any engineer, adjustor or other agent or contractor affiliated with any defendant, relating to the properties and damage at issue in each and every case, whether such documents are in the possession of defendant or any third party.[1]

---

[1] In re Hurricane Sandy Cases, No. 14 MC 41, 2014 WL 7011069, *1 (E.D.N.Y. December 11, 2014).  [Emphasis in original.]  This was an order issued by a Committee of three United States Magistrate Judges managing “more than 1,000 Hurricane Sandy cases”.  The Committee of Magistrates approved the previous ruling of Magistrate Brown in one of the cases that the defendant insurance company would be required to respond to the quoted production request, and affirmed that this discovery ruling applies to all of the Hurricane Sandy cases.

 

---

 Reprinted with the permission of Thomson Reuters West from the manuscript of the author's 2015 Supplement chapters in “Catastrophe Claims:  Insurance Coverage for Natural and Man-Made Disasters” ©2015 by Thomson Reuters West.

 

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Adjusting Sandy Sanctions in New York.

ADJUSTING SANDY SANCTIONS IN NEW YORK.

    A United States District Judge has affirmed a Magistrate Judge's imposition of sanctions for conduct in the course of adjusting and litigating Sandy claims.  The Magistrate Judge's decision was commented on here.  "Federal Court in New York Investigates Sandy Adjusting," November 12, 2014.

    The District Judge laid out the entire situation concisely at the beginning of a longer opinion.  The Judge's opening is well worth reading in full:

Pending before the Court is defendant's appeal of an order issued by Magistrate Judge Gary R. Brown on November 7, 2014, In re Hurricane Sandy Cases, ___ F.R.D. ___, 2014 WL 5801540 (E.D.N.Y. Nov. 7, 2014)(the “November 7 Order”), addressing the disclosure of draft engineering reports on insured properties allegedly affected by Hurricane Sandy, and imposing evidentiary sanctions on defendant Wright and monetary sanctions on its counsel for failing to obey discovery orders and causing undue delay to these proceedings. The sanctions arose from (1) a failure by defendant and its counsel to disclose an initial written report (dated December 9, 2012) by George Hernemar, an engineer from U.S. Forensic (“USF”), who had inspected the home at issue and concluded that it had been damaged beyond repair by Hurricane Sandy, and (2) the conduct by defendant's counsel at a subsequent evidentiary hearing before Magistrate Judge Brown to determine how the undisclosed initial report was modified into a second subsequent report, dated January 7, 2013 (disclosed to plaintiffs), which eliminated certain observations by the engineer and reached the exact opposite conclusions—namely, that the defects in the home had not been caused by the storm, but rather were due to long-term deterioration. In particular, following the evidentiary hearing, Magistrate Judge Brown found, inter alia, the following: (1) defendant and its counsel violated their obligations to comply with this Court's discovery orders by failing to produce the initial engineering report; (2) the process, in this particular case, that led to the alterations of Hernemar's observations in the initial report and the reversal of the report's conclusions was “flawed,” “unprincipled,” “reprehensible,” and “highly improper”; (3) the failure to disclose the initial report resulted, in this case, in “unreasonably prolonging this litigation, imposing unnecessary costs upon plaintiffs and further contributing to the unwarranted delays in resolving this claim”; and (4) “given the discovery failures by defendant's counsel, the unreasonable response by defendant to the allegations, and counsel's shocking attempt to curtail inquiry during the hearing, it is reasonable to charge the costs associated with the hearing to defendant's counsel.” (November 7 Order, at 13, 15–25.)

For the reasons set forth in detail below, the Court affirms Magistrate Judge Brown's November 7 Order in its entirety. More specifically, there is no basis for this Court to conclude that Magistrate Judge Brown's findings or his sanctions were clearly erroneous or contrary to law, as would be required for a reversal. Having carefully reviewed the record, it is absolutely clear to this Court that the process that led to the modification of the initial engineering report (including the removal of observations that were inconsistent with the new conclusions) was flawed, and the concealment of that initial report and the process that led to the new report (including conduct at the evidentiary hearing) has prejudiced plaintiffs in terms of delay and costs in this litigation, such that the sanctions were warranted.

 

In re Hurricane Sandy Cases (Raimey v. Wright Nat'l Flood Ins. Co.), ___ F. Supp. 3d ___, 2014 WL 7399179, *1 (E.D.N.Y. December 31, 2014)(Bianco, United States District Judge).  [Emphasis added.]

 

Please Read The Disclaimer.  Copyright 2015 by Dennis J. Wall.  All rights reserved.  No claim to Original U.S. Government Works.

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THEY WERE AGAINST IT BEFORE THEY WERE FOR IT: Fladell, THE FIRST PART.

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CAUSATION TESTIMONY PROPERLY ADMITTED IN PENNSYLVANIA INSURANCE COVERAGE CASE.

          An insurance company's challenge both to a policyholder's expert's qualifications and testimony was rejected in a revealing appellate decision in McEwing v. Lititz Mutual Insurance Co., 2013 PA Super. 171, 77 A.3d 639 (Pa. Super. Ct. 2013).

          The expert "was qualified and admitted, without objection, as a professional engineer and a certified construction inspector with respect to residential homes."  The expert testified to the cause of a policyholder's claimed loss as a result of the collapse of her "home's supporting joint system":

• The expert inspected the damage to the home's interior.
• The expert inspected the crawlspace beneath the home.  There he observed that although broken joists had been replaced, "parts of the remaining joists were still rotted."
• The expert took photographs to document his inspection.
• His personal inspection came after repairs were made, as noted.  Therefore the expert "also reviewed photographs that had been taken before the repairs had been made".
• The expert interviewed the policyholder's son-in-law who was assisting the policyholder in presenting the facts of her insurance claim, "about the extent of the damage and the temporary repairs."

Against this background of facts, the appellate court rejected the insurance company's challenge to the expert's qualifications and testimony.  The appellate court observed at one point:

We do not see how [the expert's] failure to inspect the home's attic or roof prevented him from determining how the home's supporting joint system collapsed.

McEwing v. Lititz Mutual Insurance Co., 2013 PA Super. 171, 77 A.3d 639, 650 (Pa. Super. Ct. 2013). [Emphasis added.]

          At another point, the appellate court also rejected the insurance company's objection that the expert's conclusions should have been ruled inadmissible in that they were based 'only' on personal experience and personal observations:

We find no support for [the insurance company's] broad claim that [the expert] was required to use specialized equipment and make specific citations to a building code to support his claim.

McEwing v. Lititz Mutual Insurance Co., 2013 PA Super. 171, 77 A.3d 639, 650 (Pa. Super. Ct. 2013).

          Perfection is not required.  The experience and personal observation of a causation expert were enough to support the admission of the expert's testimony in this insurance coverage case.  Parenthetically, Pennsylvania Rule of Evidence 703 governed the outcome here.  It is reasonable to assume that Federal Rule of Evidence 703 upon which the Pennsylvania Rule of Evidence is based, would lead to a similar outcome. 

© 2014 by Dennis J. Wall.  All rights reserved.  No claim to original U.S. Government works.

Please Read The Disclaimer.

 

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ALL EXPERTS TREATED ALIKE, AT LEAST FOR FEDERAL COURT DISCLOSURES.

          In the case of Lead GHR Enter's, Inc. v. American States Ins. Co., 2014 WL 1246499 *3 (D.S.D. March 25, 2014)(Duffy, USMJ), a U.S. Magistrate Judge saw no distinction in how Federal Rule 26 requires disclosures from the experts to whom it applies.

          If Rule 26 applies to one expert, it applies alike to all experts subject to that Rule.  That includes rebuttal experts as well as experts in your case-in-chief.

          This ruling seems to be the majority view of the question.

          In this particular case, moreover, the expert in question was not really offered just in rebuttal.  Rather, the party disclosing him was attempting to use him "as an initial expert witness." Lead GHR Enter's, Inc. v. American States Ins. Co., 2014 WL 1246499 *4 (D.S.D. March 25, 2014).  Needless to say, this turn of events did not change the ruling.

          The ruling had already been made:  Rule 26 requirements apply to experts who have been disclosed under Rule 26.  That is the ruling.  Period.

 P.S.

Subject to the party producing the witness to be redeposed and paying certain expenses, the expert was allowed as an initial expert witness and not just in rebuttal.

© 2014 by Dennis J. Wall.  All rights reserved.  No claim to original U.S. Government works.

Please Read The Disclaimer.

MORE FROM THE 15th ANNUAL WINDSTORM INSURANCE CONFERENCE 2014 IN ORLANDO.

          The first breakout session I attended today was "Use of Experts in Windstorm Cases."  On so many levels, this excellent course could have been entitled simply, "Use of Experts."  The key is preparation, preparation, preparation.

          Attorneys welcome the consultation of Experts whether the attorneys represent Policyholders or Insurance Companies.  The Experts educate the lawyers who educate their clients.  Again, the key is preparation.

          The same key unlocks the second breakout session I attended today, "Be a Better Witness:  Rules for Navigating Deposition Preparation and Testimony."

          In the case of Videotaped Depositions, the title of this session could easily have worked without the word, "deposition".  This informative session was all about Preparation and Testimony for Trial as well.

          All three of the presenters agreed that a video deposition is just the same as testifying at Trial in the sense that all sides will or may play parts of the video testimony to the Jury.  Preparation is the key to success in video testimony, as preparation is the key to success in so many other things in life.  The witness in a video deposition needs to be prepared to speak to the Jury in her own mind when she testifies in the deposition.  She needs to make eye contact, in this case with the camera.  This obviously can lead to the witness feeling the pressure of testifying.  The best way for the witness to remain calm is preparation.

          If the witness in a video deposition takes a long time to answer what seems to be a simple question, for example, there are consequences that do not exist in other types of depositions.  The video deposition "long pause" will be shown to the Jury, for example, whereas there is nothing similar in the deposition transcript even if the Court Reporter makes a note like, "(Pause by the witness before answering)," or some other notation to that same effect.

          In either case, whether the testimony is recorded in a video or in a transcript, a "long pause" before the witness answers indicates that the witness needed more preparation than she received before she went into the deposition room to testify.

          Simply put, if the case is worth litigating, it is worth preparing.  If the testimony is important enough to videotape, it is important enough to review.  That observation applies in the long run as well as in the short run, in my judgment.  Either way we think of it, the answer comes out the same on this one:  Evaluate yourself and improve.

 © 2014 by Dennis J. Wall.  All rights reserved.  No claim to original U.S. Government works.

 Please Read The Disclaimer.

Discovery From Your Experts.

            In my experience as an Expert Witness, interrogating attorneys frequently demand that expert witnesses produce their books and articles by a demand written something like this:

           All the publications you have ever written.

           For a frequently published author, such as myself, that can be a boatload of stuff if I kept any of it.   (I pdf my recent articles and publish them on my website at www.dennisjwall.com.  I also insert hyperlinks to my books there.  If anyone wants to put their hands on those materials, there they are.)

          It is also my experience that retaining attorneys are usually very good about protecting their experts from harassing discovery demands, but there is sometimes a rare case as I understand it when the retaining attorney does not oppose such discovery and the expert is expected to protect herself or himself, and even more rarely, that in a very few cases the retaining attorney tells the experts to produce all the publications they have.

 

          In those situations, I commend the following approaches to fellow expert witnesses and to fellow attorneys who retain expert witnesses, as well.  One possible line of response is based on the applicable Rules of Civil Procedure.  The rules are generally explicit about what affirmatively can be demanded from expert witnesses in litigation, and all the publications you have ever written -- in fact, any publications you have ever written that you did not rely on in the case at bar -- are simply not written there.  In the Federal Court system, that is Rule of Civil Procedure 26(a)(2) and 26(b)(4), for example, and in Florida that is Rule 1.280(b)(5).  In particular, the Federal Rules require only a list of publications, not the publications themselves.  Fed. R. Civ. P. 26(a)(2)(B)(iv) (disclosures required of a testifying expert witness include disclosure of "the witness's qualifications, including a list of all publications authored in the previous 10 years").

          A second or possible 'fallback' position in jurisdictions in which the civil rules do not specifically address the question, might involve reference to the time limitations on revealing previous expert witness testimony.  In general terms, the time period for a party which has retained an expert witness expected to testify at trial, is to disclose the identity of cases in which she or he has previously testified within a reasonable time period, for example.  See Fla. R. Civ. P. 1.280(b)(5).  There should arguably be no good reason not to impose at most similar limitations on production of publications authored by the expert witness, as the limitations imposed by the Rules themselves on disclosure of testimony previously given by the expert witness in litigation.

 © 2013 by Dennis J. Wall.  All rights reserved.  No claim to original U.S. Government works.

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EXPERT WITNESSES IN FLORIDA COURTS, INCLUDING BAD FAITH CASES:

... THE NEW RULE IN FLORIDA.

    The Governor of Florida has now signed the bills that change the rules.  Expert Witness Testimony in Florida will likely soon be governed by the law set out in the May 22, 2013 post here, changing from an admission standard set by Frye and its progeny 90 years ago to an admission standard first set only 20 years ago in Daubert:  "Governor Inks Expert Witness, Med Mal Bills" p. 9, col. 1 (Florida Bar News, June 15, 2013).

    "These are reasonable standards, yet they weren't practiced in Florida."  That is what Mr. Scott, the Governor of Florida, reportedly said when he signed the bill into law.  Id. 

    We can all already hear the people who will say something like, "So, what's your point?"  Pay no attention to them.

    At this point, in fact, it will be up to the Supreme Court of Florida to adopt the new statute passed by the Florida Legislature as a new rule of Court binding upon the Florida Courts.  That is reasonable to expect, but the new standard of admitting Expert Witness Testimony in Florida Courts will not be "a done deal" until then.

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LAWYER'S ARGUMENT NO SUBSTITUTE FOR EXPERT REPORT, EVIDENCE IN RECORD.

          In Stor/Gard, Inc. v. Strathmore, 2013 WL 2364168 (1st Cir. May 31, 2013), the First Circuit Court of Appeals was presented with an argument on appeal that was not evidenced in the record, the Court said.  The lawyers for Stor/Gard argued that the damage was caused by a water leak which was dismissed as playing a minimal role in causing the loss.  The only evidence in the record apparently was an Expert's report relied on by Stor/Gard's insurance carrier.

          Stor/Gard did not proffer any Expert evidence of their own, the Court pointed out.

          As a result, the leak-as-cause-of-loss was the product only of a lawyer's argument.  On the other side stood the evidence and Massachusetts law.  Of the evidence, the report of an Expert relied on by the carrier has already been mentioned as to the leak theory.  The report concluded that the predominant cause of the loss was rain and water from a storm.

          Massachusetts law is at issue in that case.  Massachusetts follows the efficient proximate cause doctrine where, as in that case, the insurance policy contains an "anti-concurrent cause" exclusion that if two or more causes combine to cause a claimed loss, and one of the causes is excluded, then the entire loss is excluded from coverage.  Under the Massachusetts efficient proximate cause doctrine, however, there still can be coverage in such a case if the covered cause was the efficient proximate cause of the loss.

          Here, as noted above, the leaky faucet combined with an excluded cause or causes of loss in causing the loss at issue.  The leaky faucet could not be the efficient proximate cause of that loss in this case on this record, however, because the only evidence in the record speaking to the causation role of the leak, was that the leak was a minimal cause at most.

          The First Circuit affirmed a holding of no coverage in this case accordingly.

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EXPERT WITNESSES IN FLORIDA COURTS, INCLUDING BAD FAITH CASES.

    A lot has been written in the past 3+ weeks about the 2013 Florida Legislature's enactment of a bill to establish new Florida standards for the admission of Expert Testimony.  Yet, none of the articles I have read so far have published the text of the new standards.  To meet the need to know, I researched and am printing here the text of the new standards for the admission of Expert Testimony in Florida Courts, including Bad Faith Cases.

    Putting aside obvious questions of substantive vs. procedural jurisdiction over Court Rules, with the latter being exclusively reserved to the Florida Supreme Court (but which has usually chosen to adopt the provisions of Chapter 90 of the Florida Statutes, the Florida Evidence Code, as a "Rule"), here is the text of the new standards passed by the 2013 Florida Legislature:

Section 1. Section 90.702, Florida Statutes, is amended to
    6  read:
    7         90.702 Testimony by experts.—If scientific, technical, or
    8  other specialized knowledge will assist the trier of fact in
    9  understanding the evidence or in determining a fact in issue, a
   10  witness qualified as an expert by knowledge, skill, experience,
   11  training, or education may testify about it in the form of an
   12  opinion or otherwise, if:
   13         (1) The testimony is based upon sufficient facts or data;
   14         (2) The testimony is the product of reliable principles and
   15  methods; and
   16         (3) The witness has applied the principles and methods
   17  reliably to the facts of the case; however, the opinion is
   18  admissible only if it can be applied to evidence at trial.
   19         Section 2. Section 90.704, Florida Statutes, is amended to
   20  read:
   21         90.704 Basis of opinion testimony by experts.—The facts or
   22  data upon which an expert bases an opinion or inference may be
   23  those perceived by, or made known to, the expert at or before
   24  the trial. If the facts or data are of a type reasonably relied
   25  upon by experts in the subject to support the opinion expressed,
   26  the facts or data need not be admissible in evidence. Facts or
   27  data that are otherwise inadmissible may not be disclosed to the
   28  jury by the proponent of the opinion or inference unless the
   29  court determines that their probative value in assisting the
   30  jury to evaluate the expert’s opinion substantially outweighs
   31  their prejudicial effect.
   32         Section 3. This act shall take effect July 1, 2013.

At this time, it appears that this act is still awaiting the governor's signature.  If he signs it, that act will not change the effective date set by the Florida Legislature.

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LATE NOTICE DID NOT BAR EXPERT OPINIONS. IT BARRED COVERAGE.

          Experts can conclude 4 1/2 years later that they can testify to opinions including, say, on the issues left long ago by Hurricane Wilma as in the case of  Yacht Club on the Intracoastal Condo. Ass'n, Inc. v. Lexington Ins. Co., 2013 WL 1932152 (S.D. Fla. May 10, 2013).

          However, the fact that Experts can come to opinions 4 1/2 years after the event does not establish that notice was prompt.  It establishes only that the experts say they can testify to opinions.  Yacht Club on the Intracoastal Condo. Ass'n, Inc. v. Lexington Ins. Co., 2013 WL 1932152 *4-*6 (S.D. Fla. May 10, 2013).

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THE EXPERT WITNESS: SELECTING AND MANAGING A VITAL RESOURCE.

          Miracle Temple Christian Academy accepted partial payment of its Property claim.

          Its Property Insurance Carrier, Church Mutual, paid the part of Miracle Temple's claim which both parties agreed was covered.  That amount came to a covered loss of $28,065.50, less a $1,000.00 Deductible.  Miracle Temple Christian Academy v. Church Mutual Insurance Co., 2013 WL 820588 *2 (E.D. Pa. March 6, 2013).

          In making this partial payment of all the undisputed covered elements of its Policyholder's Property Loss Claim, Church Mutual was arguably acting in demonstrably verifiable Good Faith under the majority view which holds that Property Carriers should demonstrate their Good Faith by paying undisputed, covered portions of Property Insurance Claims.  The majority view and arguments pro and con are discussed in 2 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH § 9:27,  "Insurer's Payment of Undisputed Covered Amounts--Part Payment of Property Insurance Claims" (West Publishing Co. Third Edition, 2013 Supplement in process).  It is presumably for this reason that Miracle Temple dismissed both its Bad Faith Claim and its Fraud Claim early on after it filed suit against Church Mutual, proceeding only on its Claim for alleged Breach of Contract.

          Miracle Temple sued Church Mutual to recover "the remaining disputed loss."    Miracle Temple Christian Academy v. Church Mutual Insurance Co., 2013 WL 820588 *2 (E.D. Pa. March 6, 2013).  Church Mutual filed a Motion for Summary Judgment, arguing that Miracle Temple's remaining loss was due to excluded "wear and tear" and that Miracle Temple had failed to present any proof otherwise.

          Miracle Temple countered with an Expert Report.  After examining the Expert's Opinions and the bases for them expressed in that Report, the Court concluded that the Expert's Opinions "are specific enough that, in combination with the other evidence presented, the jury could find that there was additional damage to Miracle Temple's property that is not excluded by the normal wear and tear provision of the policy.  In short, though the circumstances under which [the Plaintiff's Expert] conducted his investigation were far from ideal, these shortcomings do not preclude his investigation from being based on adequate facts or data."   Miracle Temple Christian Academy v. Church Mutual Insurance Co., 2013 WL 820588 *4-*5 (E.D. Pa. March 6, 2013).  The District Court accordingly denied the Property Carrier's Motion for Summary Judgment in that case.

The Expert Witness:  Selecting and Managing  A Vital Resource is one of the articles in Property Casualty 360 (March 12, 2013), for example, featuring best practices concerning your Expert Witnesses and other parties' Expert Witnesses.  You can read these best practices online or print them, free, from the Publications Page of my website.

Please Read The Disclaimer.

N.Y. COURT BARS CAUSATION EXPERT'S "IPSE DIXIT" IN HURRICANE CASE.

          The Southern District of New York barred a causation Expert's "ipse dixit" about damage caused during a Hurricane, in 405 Condo Associates LLC v. Greenwich Insurance Co., 2012 WL 6700225 (S.D.N.Y. December 26, 2012).

          The causation Expert submitted a Report and was prepared to testify that the cause of the Policyholder's claimed loss was due to the winds of Hurricane Irene, wind being a covered cause of loss.  This Opinion went directly to the heart of the Coverage dispute in this case.  After investigation, the Insurance Company denied the claim on the ground that the damage was caused exclusively by water seepage or wind-driven rain, excluded causes of loss under the Policy.   405 Condo Associates LLC v. Greenwich Insurance Co., 2012 WL 6700225 *1 (S.D.N.Y. December 26, 2012).

          The Insurance Company filed a Motion to Bar the Policyholder's Expert's Testimony and a Motion for Summary Judgment.  The New York Federal Court granted the Motion to Bar the Expert Testimony on the ground that the Policyholder's causation Expert did not base his causation Opinion on any clear methodology, or on relevant data, or even on timely personal inspection of the property at issue.  As a result, the Opinion was inadmissible speculation or an "ipse dixit" (i.e., "I said it, therefore it is true" or "It is true because I said it").  405 Condo Associates LLC v. Greenwich Insurance Co., 2012 WL 6700225 *3-*4, *5 (S.D.N.Y. December 26, 2012).

          The Federal Court then denied the Insurance Company's Motion for Summary Judgment on the grounds that there was sufficient evidence in the record for the Policyholder's claim to go to the Jury, or that the Insurance Company had in any case failed to meet "its burden of proving that no genuine factual dispute exists regarding the source of the property damage."  405 Condo Associates LLC v. Greenwich Insurance Co., 2012 WL 6700225 *6 (S.D.N.Y. December 26, 2012).

          Happy New Year!  And in the Spirit of a New Year to come for us all, take a look today at Cavalcade of Risk No. 173 hosted on Van R. Mayhall, Jr., Esquire's excellent blog, "Insurance Regulatory Law".  Van calls this hosting posting "Surviving the Mayan Apocalypse Edition"!

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Related articles

Experts in Insurance Cases: Experience Is the Deciding Factor.

Postscript to Not-a-Hurricane Sandy and Your Hurricane Deductible.

EXPERTS IN INSURANCE CASES: EXPERIENCE IS THE DECIDING FACTOR.

          Federal Courts apply a "gatekeeper" test for allowing Expert Witness Testimony.  The test was originally written for scientific testimony.  However, in many cases, and particularly in Insurance Cases, Expert Testimony is admitted into evidence based on the Experience of the Experts.  See generally Dennis J. Wall, 1 "Litigation and Prevention of Insurer Bad Faith" § 8:17 "Experts in Third-Party Insurance Bad Faith  Cases:  Specific Cases and General Rules"(Third Edition West 2011, 2012 Supplement, 2013 Supplement in process), and id. volume 2,  § 12:18 "Experts in First-Party Insurance Bad Faith  Cases:  Specific Cases and General Rules".

           Indeed, expert testimony may be based on “experience alone-or experience in conjunction with other knowledge, skill, training or education.” Fed.R.Evid. 702 advisory committee's note. “In certain fields, experience is the predominant, if not sole, basis for a great deal of reliable expert testimony.”

Automobile Insurance Co. of Hartford, Connecticut v. Electrolux Home Prod's, Inc., 2012 WL 6629238 *2 (S.D.N.Y. December 20, 2012).

 Happy New Year to All in the year to come!

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Related articles

Where The Truth Lies: The Hearsay Problem With Lie Detector Evidence

INSURANCE COVERAGE CASE: EXPERT EXCLUDED FROM TESTIFYING CONCERNING SETTLEMENT ALLOCATION.

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).  

Please Read The Disclaimer.

THREE FOR THE EXPERTS IN INSURANCE COVERAGE CASES.

          Experts abound in the Insurance cases reported recently.

          In Wheeler's Moving & Storage, Inc. v. Markel Ins. Co., 2012 WL 3848569 (S.D. Fla. September 5, 2012), Download Wheeler's Moving & Storage, Inc. v. Markel Ins. Co. (S.D. Fla. No. 11.80272, Opinion and Order Filed September 5, 2012) PUBLIC ACCESS, Experts left a Federal District Judge completely unimpressed.  The Experts provided testimony on the issue of whether a liability insurance company was prejudiced by what was admittedly late notice in that case.  Markel Insurance was provided first notice of a lawsuit against its insureds more than two years after the incident in question, a lawsuit which had been going on for 18 months.  The underlying case was scheduled to go to trial within a month following Markel's first notice of it.

          Under Florida law followed by the District Court, late notice raises a rebuttable presumption of prejudice.  Wheeler's Moving & Storage, Inc. v. Markel Ins. Co., 2012 WL 3848569 *7 (S.D. Fla. September 5, 2012).  The Federal Judge held that the presumption of prejudice was not rebutted in this case.  Moreover, the Federal Judge wrote:  "No reasonable interpretation of the record evidence supports a finding that notice was timely.  No fact justifies a delay from June 18, 2008, when McTigue filed the underlying suit, until January 13, 2010, when notice was finally given to Markel."  Wheeler's Moving & Storage, Inc. v. Markel Ins. Co., 2012 WL 3848569 *6 (S.D. Fla. September 5, 2012).  In this same Order, the Federal Court granted Markel's Motion for Summary Judgment.  PACER, the online docket of the Federal Courts, reflects the entry of a Final Judgment in this case, also on September 5, 2012.

          In Harrison v. International Catastrophe Ins. Mgrs., LLC, 2012 WL 1884458 (E.D. Tex. March 20, 2012), Download Harrison v. International Catastrophe Ins. Mgrs., LLC (E.D. Tex. No. 1.10CV683, Order of USMJ Denying Motion to Exclude Filed March 20, 2012) PUBLIC ACCESS, a U.S. Magistrate Judge in the Eastern District of Texas denied a Motion to Exclude Expert Testimony filed by the Defendants in a Property Damage case following Hurricane Ike.  The Expert was retained by the Plaintiff-Insured to establish causation.  His reliance on a report which was not in evidence, and prepared by another Expert rather than by himself, was not objectionable because the causation Expert "may rely on Mr. Garrett's report even if that report is inadmissible".  Harrison v. International Catastrophe Ins. Mgrs., LLC, 2012 WL 1884458 *3 (E.D. Tex. March 20, 2012).

          A finishing touch was put on the reception of Expert Testimony by a Bankruptcy Judge in the Central District of California, in the case of In re Dykstra (Dykstra v. Firemans Fund Ins. Co.), 2012 WL 2131848 (Bankr. C.D. Cal. June 12, 2012).  The Court retained the Expert itself in that case, in order to advise the Court on Insurance Coverage issues.  In re Dykstra (Dykstra v. Firemans Fund Ins. Co.), 2012 WL 2131848 *3 (Bankr. C.D. Cal. June 12, 2012)("In fact, it was obvious to all parties that an expert on insurance coverage would be required and there was no reason for the parties to wait before searching for one.").  Parenthetically, the Debtor and Plaintiff in that contested case formerly roamed Center Field for the New York Mets.  His objections to the Court-appointed Expert were rejected.

Dennis Wall is a featured speaker at this year's National Forum on Bad Faith Litigation in Orlando, Florida on November 28 and 29, 2012.  Readers of this blog can receive a $200.00 discount on registration by entering the code, "BFB 200," at the American Conference Institute's website:  www.americanconference.com/badfaith.

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FINAL FOUR-TEEN FOR THE EXPERTS: EXPERTS IN INSURANCE CASES ....

... THE LAST OF THE BUNCH.  FOURTEENTH AND FINAL CASE.

(FOR NOW.)

   On the Defendant Insurance Company's Motion for Partial Summary Judgment in a Hurricane Wilma Property Damage case, a United States Magistrate Judge in South Florida now allowed an Expert Report where there is evidence of Hurricane Wilma Damage.  The Defendant's motion was denied on this ground, i.e., on the ground that there was insufficient evidence in the record that Hurricane Wilma caused the Damages which it was claimed to cause under the Property Policy at bar because the Plaintiff's Expert's Report was not stricken although it could have been stricken and it, the Plaintiff's Expert's Report, provided "evidence of its [Kendall Lakes'] damages and summary judgment cannot be granted on this ground."  Kendall Lakes Towers Condominium Association v. Pacific Insurance Co., 2012 WL 266438 *1 (S.D. Fla. January 30, 2012; Goodman, USMJ), Download Kendall Lakes Towers Condominium Assn v. Pacific Ins. Co. (S.D. Fla. Case No. 10.24310, Order of USMJ Filed Jan. 30, 2012) PUBLIC ACCESS.

   The Court's previous and unique ruling refusing to entirely exclude the Testimony of the Plaintiff's Expert in question, and allowing the Plaintiff to make certain payments if it elected to use the Testimony of that Expert, was previously posted here, on February 22, 2012 .  PACER, the online docket of the Federal Courts, reveals that the parties filed a joint stipulation for dismissal on March 6, 2012.  The next day, the Court entered an Order granting the stipulation for dismissal. 

   The Defendant's Motion for Partial Summary Judgment on the different ground of Late Notice was also denied.  Whether there is prejudice from Late Notice in this case is a question of fact, the Court ruled.  Id. at *5 - *7.  However, the Court in this case first ruled that the Notice given to the Insurance Company was in fact late.  Id. at *2 - *5.

   The thing that saved the Plaintiff from suffering the entry of Summary Judgment on Late Notice was the Court's ruling that Kendall Lakes, the Plaintiff, could rely on Pacific's "own expert reports" to rebut the rebuttable presumption of Late Notice under Florida law here:  "But Kendall Lakes may nevertheless rely on evidence produced by Pacific, including its own expert reports, to sustain its burden of rebutting the presumption of prejudice, as it has attempted to do here."  Id. at *5.

Please Read The Disclaimer.

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

.... The Twelfth Case.

    In a change-of-pace, Insurance Claims and Bad Faith Law Blog and Insurance Claims and Issues Weblog have been trading 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.

 

Hurricane Wilma Professional Engineer Expert Disallowed.

        In the case of Banta Properties, Inc. v. Arch Specialty Insurance Co.,  2011 WL 7118542 (S.D. Fla. December 23, 2011), Download Banta Props, Inc. v. Arch Specialty Ins. Co. (S.D. Fla. Case No. 10.61485, Order Granting Daubert Motion for Exclusion, Filed Dec. 23, 2011) PUBLIC ACCESS, the District Court disallowed a Plaintiff Property Management Company's proffered Expert.  The Expert in question is a Professional Engineer.  She was proffered to testify to her Opinions "that Hurricane Wilma damaged windows and doors at Plaintiff's properties and as a result needed replacement."  Id. at *1.  The Defendant Insurance Company requested the Court to exclude her Expert Testimony on a number of different grounds.

        In pertinent part, the Professional Engineer Expert could not satisfactorily attribute the Plaintiffs' claimed Damages to their claimed cause, Hurricane Wilma.  The Court "agrees that Mellinger was unable to attribute damage to Hurricane Wilma with any degree of certainty and that she used an unreliable methodology.  Therefore, the Court shall exclude her expert opinions."  Id. at *2.

        If an Expert is proffered on Damages, she should also offer acceptable Opinion Testimony as to what caused those Damages, or suffer the risk of not testifying at all, as in this case.

      Parenthetically, the exclusion of this Expert's Testimony does not appear to have harmed the Plaintiff''s case very much.  PACER, the online docket of the Federal Courts, reflects that the Jury returned a Verdict for the Plaintiff on January 30, 2012.  The Verdict includes the Jury's finding that $4,000,000.00 or $4 Million is the amount of the Plaintiff's covered Damages resulting from Hurricane Wilma.  On February 27, 2012, the Plaintiff filed a motion for entry of final judgment.

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

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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.

What Will be Done With Late-Filed Expert Witness Affidavits and Reports?

           In the case of House of Clean, Inc. v. St. Paul Fire & Marine Insurance Co., 2011 WL 2118633 (D. Mass. May 27, 2011), Download House of Clean, Inc. v. St. Paul Fire & Marine Insurance Co. (D. Mass. Case No. 07.10839, Memorandum and Order Filed May 27, 2011) PUBLIC ACCESS, a Federal District Judge's solution was not to consider Plaintiff's late-filed Expert's Affidavit on Defendant's Motion for Summary Judgment.  The Affidavit (or the Expert's Testimony live) would be considered at Trial in this Declaratory Judgment Action involving issues of Insurance Coverage for Pollution, and the Sudden and Accidental Exception, the District Judge in that case ruled.   Id. at *12.

     Parenthetically, the Online Docket of this Federal Case on PACER reflects that the parties settled the case, and the Court granted the parties' joint motion to dismiss because of the settlement, on August 16, 2011.

What Will be Done With Very Long Expert Witness Affidavits and Reports?

            In some Insurance Cases, as in Curatolo v. Allstate Insurance Co., 2011 WL 2116459 (N.D. Ohio 2011), Download Curatolo v. Allstate Insurance Co. (N.D. Ohio Case No. 5.10CV607, Memorandum of Opinion and Order Filed May 27, 2011) PUBLIC ACCESS, the Court may not read Expert Witness Affidavits that are just too long and are not even referenced in pertinent part in the Motions and Memorandums which they are filed to support.  In Curatolo, the Expert's Affidavit in question was 63 pages long.  The Affidavit was offered in the context of a theft claim followed by a vehicle claim and then by a sewer backup claim, denial of all Coverage for all claims on various grounds, and a Complaint in Federal Court for alleged Breach of Contract, Declaratory Judgment, alleged Bad Faith, and alleged Intentional Infliction of Emotional Distress.  Id. at *1.

          The Federal Judge in that case ordered the Defendant as the proffering party to brief the issue(s) for which the Expert's Affidavit was proffered, if they want the Court to consider the Expert's Affidavit which they filed in support of their Motion for Summary Judgment on various grounds.  See id. at *4 - *10.

     Parenthetically, PACER relects that this case was dismissed with prejudice based on the parties' settlement agreement, on June 10, 2011.

To be continued ....

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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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Title Insurance Lawyer's Legal Conclusions Not Admissible Expert Opinions.

   In an opinion nearly as long as the Texas Panhandle, a Federal Magistrate Judge in Texas held that a Title Insurance Lawyer could not testify to legal conclusions, not even as an Expert Witness offering 'Opinion' testimony.  Fidelity Nat'l Title Insurance Co. v. Doubletree Ptrs., L.P., 2011 WL 4715174 *6-*7 (E.D. Tex. October 5, 2011), Download Fidelity Nat'l Title Insurance Co. v. Doubletree Ptrs., L.P. (E.D. Tex. Case No. 4.08 CV 243, Memorandum Opinion and Order Filed October 5, 2011) PUBLIC ACCESS.  This holding is consistent with the overwhelming majority, perhaps universal view, that an Expert Witness is not permitted to testify to legal conclusions.

   Another consistent holding in this case came after a finding (or holding) of no Insurance Coverage.  Under Texas law, there could be no actionable breach of the implied Duty of Good Faith and Fair Dealing without a breach of the Insurance Contract.  Id. at *18.

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Motions in Limine Running Wild: Focus on Experts, Computer Simulations.

   In the case of Royal & Sun Alliance Insurance PLC v. UPS Supply Chain Solutions, Inc., 2011 WL 3874878 (S.D.N.Y. August 31, 2011), the Plaintiff, a Liability Insurance Company, and one of the defendants filed more than 9 motions in limine between them.  (Previously filed motions in limine were not counted by the District Judge in this decision.)

   Six of the motions in limine focused on Expert Witnesses and computer simulations.  One of the defendant's proffered Experts, an accident reconstructionist, produced various computer simulations "using the PC Crash computer software" to reconstruct the automobile accident at issue and whether in effect it was, in this instance, negligence per se on the part of the subject defendant, as Royal Sun alleged.  Royal Sun contended in one of its motions in limine that the accident reconstructionist's testimony would be "unreliable" and should thus be excluded because of 'GIGO,' or 'Garbage In, Garbage Out':  Royal Sun alleged that the Expert "used flawed factual inputs to run the program."  Id. at *7.

   The defendant which proffered this Expert's Opinion Testimony including regarding the computer simulation in question, also submitted a "declaration" from him in opposition to Royal Sun's motion in limine to exclude the Expert's testimony about any of his computer simulations.  Id. at *8.

   The Federal Court considered the record and found that the Expert's methodology was reliable enough for his Expert Testimony to be admissible.  "Royal Sun will have the opportunity to question [him] about his methodology at trial, including why he selected certain inputs for PC Crash and why he decided not to run more than ten scenarios in conducting his analysis."  Id. at *9.

   Royal Sun's motions in limine fared better with the Federal Judge in this case when they directed attention to two of the accident reconstructionist's computer simulations, with the contention that both of the two simulations were disclosed "late" in violation of Federal Rule of Civil Procedure 26(a)(2)(B) and thus they, and testimony about them, should be excluded under Federal Rule 37(c)(1).

   One of the subject computer simulations is called the "Avoidance Simulation," and the other is called the "Fogarty Simulation".  The Court found that the defendant disclosed the Expert's Avoidance Simulation six business days after the applicable deadline.  The Fogarty Simulation, in contrast, was not "formally disclosed" even at the time the Court wrote the subject opinion.  However, the Federal Court was willing to "grant [the defendant] one final opportunity to fulfill its Rule 26 obligations."  Id. at *11.  If that defendant intends to use the subject Expert's testimony about the two of his computer simulations in question, then that defendant must make the Expert available for deposition about them:

We will not limit [the Expert's] testimony concerning the initial eight to ten PC Crash scenarios he conducted.  With respect to the Avoidance and Fogarty Simulations only, [his] testimony will be precluded unless [the defendant proffering his Expert Testimony in this particular case] provides the additional discovery outlined above.

Id.

   In this case, once the Federal Court was convinced of the proffering party's failure to comply with the disclosure requirements of Federal Rule 26, the proffering party had a decision to make.  It could belatedly comply with those requirements or it could do without the Expert's Testimony at trial in that case.  The Federal Court in this case, like the Courts in many other cases previously decided on the same or similar issues, could instead have offered no choice at all and excluded the Expert Witness's Testimony entirely in regard to the untimely disclosed two computer simulations at issue there.

   It appears, moreover, that as the proffering party's alleged failure to disclose could not be cured by cross-examination (unless the Expert is made available for deposition), the Court did not treat the alleged failures of his methodology, which could clearly be cured by cross-examination, in anything like the same way.

Admissibility of Expert Testimony in Insurance Coverage and Insurance Bad Faith Cases is the focus of § 8:17 (Third-Party Cases) and § 12:18 of Dennis J. Wall, "Litigation and Prevention of Insurer Bad Faith" (West Publishing Co. Third Edition 2011).

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Three Cases For The Experts: Disclosure, Deadlines and "Fit" Testimony.

   Rules requiring disclosure of Expert Testimony are important.  Compliance with them can be crucial.  In Federal Court, Federal Rule of Civil Procedure 26(a) provides for certain requirements and deadlines governing disclosure concerning Expert Witnesses and their testimony expected to be offered at Trial.  Failure to comply with Rule 26(a) can result in the imposition of a number of sanctions under Federal Rule 37.  If the failure to comply is "neither substantially justified nor harmless," the party offering the Expert Testimony may be barred from using them in the Federal Court action "as an expert witness to supply evidence on a motion, at a hearing, or at trial," as happened to the Plaintiff Condominium Association in the case of La Gorce Palace Condominium Ass'n v. QBE Insurance Corp., 2011 WL 1522566 *4 (S.D. Fla. February 28, 2011)(authorized subscription required).

   Even where disclosure is arguably "late," it may nonetheless be substantially justified or the Court's resolution of the opposing party's challenge to the Expert disclosure may render the "lateness" of the disclosure harmless, as in Perez v. First American Title Insurance Co., 2011 WL 3861677 *1 (D. Ariz. September 1, 2011)(authorized password required to access Westlaw).  In the First American Title Insurance case, a District Judge held that a supplemental Expert report was "substantially justified" because the Court itself had previously held that electronic discovery would be allowed after the original deadlines had passed for disclosure concerning Experts, including deadlines for Rebuttal Reports.

   When timely or substantially justified, or harmless, even allowable Expert Testimony depends on the issue for which the Expert Testimony is offered.  Further, Expert 'qualifications' do not require an academic degree; experience is often the appropriate answer as to whether the proffered Expert Testimony is a good fit for the issue on hand, as  a third U.S. District Judge ruled in Metlife Auto & Home v. Broan-Nutone, LLC, 2011 WL 3736550 *3-*4 (N.D.N.Y. August 24, 2011)(authorized Westlaw password required).

Issues surrounding Expert Witnesses in Insurance Cases are addressed in Sections 8.17 (Third-Party) and 12.18 (First-Party) by Dennis J. Wall, "Litigation and Prevention of Insurer Bad Faith" (West Publishing Co. Third Edition 2011).

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