.... 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 Are "Impermissible Legal Conclusions," Exactly, to Which No Expert Witness Shall Ever be Allowed to Testify?
In the case of Great American Insurance Co. v. Jefferson County Commission, 776 F. Supp. 2d 1252 (N.D. Ala. 2010), Download Great Am. Ins. Co. v. Jefferson County Comm'n (N.D. Ala. Case No. 2.08cv01687, Memorandum Opinion Filed Nov. 15, 2010) PUBLIC ACCESS, a Federal Judge ruled in ways that outline answers to this question. The Court allowed an Insurance Company's vice president to testify about a broker's responsibilities because the vice president's testimony did not "purport to define ... legal obligations." For that announced reason, the Federal Judge overruled an objection that the vice president's testimony "amounts to expert testimony." Id. at 1260. [Emphasis added.]
In Nevels v. Deerbrook Insurance Co., 2011 WL 6304066 (E.D. Ky. December 16, 2011), Download Nevels v. Deerbrook Ins. Co. (E.D. Ky. Case No. 10-83, Memorandum Opinion and Order Filed Dec. 16, 2011) PUBLIC ACCESS, an Attorney was not allowed to offer Expert Opinion Testimony to the extent it was based on legal conclusions, but the Court's ruling is somewhat obscured by its further rulings that in that particular case, the Attorney in question was not allowed to testify to Opinions based on an application of an incorrect standard of Kentucky Bad Faith Law in that Bad Faith case in Kentucky. Id. at *3 (holding that Attorney "cannot offer an opinion on whether Deerbrook acted in bad faith because he has neither any expertise in nor a complete understanding of Kentucky bad faith law."); id. at *5 (ruling that Attorney "cannot opine on whether Deerbrook acted in bad faith because his testimony demonstrates that he does not understand Kentucky bad faith law.").
Perhaps the clearest explication of the Court's ruling came at the beginning of the Court's Opinion in this case: The Plaintiff retained the Attorney-Expert "as an expert in bad faith law and insurance claims handling. Based on [the Attorney's] testimony at the Daubert hearing, he may opine on what Deerbrook Insurance Company's initial settlement offer to Nevels should have been, but he cannot take the next step and state that Deerbrook acted in bad faith. This is because [the Attorney-Expert] does not sufficiently understand Kentucky bad faith law." Id. at *1.
Part of a Series. To be continued ....
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