--INCLUDING IN BAD FAITH CLAIMS.
There was a difference of opinion among the presenters and among the attendees at a WIND class on experts in bad faith cases.
Some people questioned whether experts are even necessary in first-party bad faith cases.
Others look to the insurance industry for their experts in claims handling. This may be a valid example of useful "peer review" in another context, namely, the selection and use of expert witnesses.
One attorney related his own experience that he encountered Daubert challenges to the qualifications of experts and their testimony under Federal Rule of Evidence 702(b) and (c). For your ease of reference, here is the entire text of Federal Rule of Evidence 702 including (b) and (c), courtesy of Cornell Law School's posting of the text:
Rule 702. Testimony by Expert Witnesses
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
The class also reported that in their experience Federal Rule of Civil Procedure 26 has been used far more often to strike experts than FRE 702 has been used to disqualify experts. (Rule 26 is one of the longer rules in the Western World, but you can read it here if you want, again courtesy of Cornell Law School.) Rule 26 can serve as a basis for striking an expert (not often granted) because of a late report or no report, to cite perhaps the most common example.
Finally, differences between State rules and Federal rules governing the admissibility of Expert testimony produced this recognized truth: Consult the laws of your particular jurisdiction before you retain an Expert or list them as your witness in a First-Party Insurance Bad Faith case.
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