Claims and Bad Faith Law Blog

Expert Proffered for Memory Forgets Previous Crossexam!

            When Does an Expert Hearing Make National News?

 When the Expert is being examined in Federal Court for reliability in a high-profile case.  And, it seems, when the Expert is proffered on what the media calls "a memory defense," and testifies that she forgets that the interrogating attorney, in this case Patrick Fitzgerald, also previously cross-examined her in a different case.  That is what is being reported in Carol Leonnig, "In the Libby Case, A Grilling to Remember" (Washington Post, page A21, Friday October 27, 2006).

    Remember that the reports so far are newspaper and other media accounts.  The reports also note that the Federal Judge has not yet ruled, apparently, on the issues addressed at this Expert Hearing.  For recent issues addressed by Federal Courts and State Courts in Insurance cases, here is an article I wrote this year:  "Experts, Gatekeepers, and Insurance Issues in Federal Cases."pdf.   In other articles, I have addressed case law and the practical experience of actually dealing with issues of when to use and how to interview and retain Insurance Experts in the first place.  Here is a link to one, published in Coverage magazine through the Insurance Coverage Litigation Committee of the American Bar Association:  "Insurance Expert Witnesses:  When is Their Opinion Testimony Admissible and When is it Desirable?".pdf.

REMINDER:  THE CONTENTS OF THIS BLOG DO NOT MAKE AN ATTORNEY-CLIENT RELATIONSHIP.  ALWAYS CONSULT THE CASES AND LAWS OF EACH PARTICULAR JURISDICTION AND AN ATTORNEY FAMILIAR WITH THE PARTICULAR INSURANCE ISSUE IN THAT JURISDICTION, WHENEVER YOU TRY TO ADDRESS OR RESOLVE ANY LEGAL QUESTION.

Proof and Experts in Bad Faith Cases

     A claim of Bad Faith in settlement under a First-Party auto coverage does not survive without supporting Affidavits or Expert Testimony or other Proof in Sehmann v. General Casualty Insurance Cos., 2006 WL 2883273 (Ct. App. Wis. Case No. 2005AP2108 Opinion Filed October 12, 2006) (subscription required), Public Access Site Provided by Court of Appeals of Wisconsin.

 

    The Court of Appeals of Wisconsin left no doubt about their holding:  "The defendant's [the insurance company's] affidavits show a reasonable process was used to arrive at its offers.  Cichowski [plaintiff-appellant] did not submit any affidavits as to what a more proper evaluation would have been, nor any expert opinions describing what process the defendant should have used instead.  Summary judgment was properly granted to General Casualty on this claim."  (Paragraph 10.)

REMINDER:  THE CONTENTS OF THIS BLOG DO NOT MAKE AN ATTORNEY-CLIENT RELATIONSHIP.  ALWAYS CONSULT THE CASES AND LAWS OF EACH PARTICULAR JURISDICTION AND AN ATTORNEY IN AND FAMILIAR WITH THE PARTICULAR JURISDICTION AND ITS LAWS, WHENEVER YOU TRY TO ADDRESS OR RESOLVE ANY LEGAL QUESTION.

Reasonable reliance, replication & rejection.

    For currently recognized or novel disciplines alike, Expert Witnesses or the lawyers who call them to the stand must meet a common requirement regardless of what Court they are in.  They will almost certainly have to demonstrate that the information on which the Expert relied was of a type reasonably relied upon by an Expert in that subject.  Yesterday's post to the recent Doctors Co. "split decision" Doctors Co. case (Fla. 1st DCA site)   of the Florida First District Court of Appeal illustrates my own nearly 30 years experience as a lawyer dealing with the admissibility of opinion testimony from Expert Witnesses.

    As pointed out in yesterday's post, all three judges of the First District panel recognized the rule that an Expert's opinion must be based on information reasonably relied on by Experts in the subject.  The three judges simply disagreed on whether some of the information a particular Expert relied on was reasonably relied on.  What is reasonable is worked out in the cases. 

    If the methodology that an Expert proffers is born out of a new discipline or science, then before that sort of testimony will be allowed, it must meet the Frye test in Florida Courts and in some other State Courts.  Among other things, the Frye test requires replication of results.  This means that the results found by the particular Expert in the new discipline or science, must be capable of being duplicated by other people in other settings before any opinions based on those results will be heard in a courtroom.

    If the venue for recognized or novel disciplines is a Federal Court or some of the other State Courts besides Florida, then once again the trial judge will act as a "gatekeeper" which means, among other things, that the trial judge will allow the opinion testimony of a proffered Expert to come into evidence when and only when the opinion is based on information reasonably relied on by an Expert in the subject.

     This pretty much brings us full circle to where we started, with the Doctors Co. case recently decided in Florida.  This is only one example of our common law system, in which standards are applied by judges to specific facts.  The people involved differ from case to case, of course; the standards applied to them are the same.  To paraphrase Judge Robert T. Mann who spoke in another context, the great glory of the common law has been its capacity for growth in the direction of obvious propriety.  We can reasonably ask no more of human beings judging cases than that.  We have no right to ask more than that, in any case.

REMINDER:  THE CONTENTS OF THIS BLOG DO NOT MAKE AN ATTORNEY-CLIENT RELATIONSHIP.  ALWAYS CONSULT THE CASES AND LAWS OF EACH PARTICULAR JURISDICTION AND AN ATTORNEY IN AND FAMILIAR WITH THE PARTICULAR JURISDICTION AND ITS LAWS, WHENEVER YOU TRY TO ADDRESS OR RESOLVE ANY LEGAL QUESTION.

Insurance Expert Opinons Wanted, Not Conversations With Lawyers.

    In a recent decision, Florida's First District Court of Appeal affirmed exclusion of an Insurance Expert's opinions.  The decision was 2-to-1 on most appellate issues, but it was unanimous on the issue of excluding an Insurance Expert's opinion based only on conversations with the party's lawyer:  Doctors Co. v. State of Florida, Department of Insurance as Receiver of Caduceus Self-Insurance Fund, Inc., 31 Florida Law Weekly D2341 (Fla. 1st DCA September 13, 2006).  The decision can also be accessed for free at Doctors Co. case (Fla. 1st DCA site).

    The proferred opinions of the Insurance Expert were based in part on "conversations he had with Appellant's attorney".  All four judges considering the admissibility of opinions based only on this source -- the trial judge and all three appellate judges -- agreed that those opinions would never be stated in a courtroom.

    The First District majority opinion announced the legal reasons.  The majority noted, first, that to the extent the Insurance Expert's opinions were based only on discussions with a lawyer, the opinions were inadmissible hearsay.  "The rule is well-established that if an expert is called merely as a conduit to place inadmissible evidence before the jury, the trial court appropriately exercises its discretion by excluding such evidence."

    Further, an Insurance Expert does not reasonably rely "on information provided by Appellant's counsel" to support his or her proferred opinions, said the First District majority.  For that reason, too, such opinions on Insurance issues were properly excluded from evidence in that case.

    In short, if the opinion of an Insurance Expert is going to be admissible in evidence, it cannot be based only on a chat, however long, with a party's lawyer.  Regardless of how long or how detailed such a conversation or conversations might be, what a lawyer told that Insurance Expert was not enough for the jury to hear those opinions.  "An expert opinion is inadmissibile where it is apparent that the opinion is based on insufficient data."

    For a recently published article on Expert Witnesses in Insurance Cases (no subscription required to this version), you can access  Experts.DaubertONLINE.pdf.

THE CONTENT OF THIS BLOG DOES NOT CONSTITUTE LEGAL ADVICE, AND IT DOES NOT MAKE AN ATTORNEY-CLIENT RELATIONSHIP.  CONSULT AN ATTORNEY AND THE RULES, CASES, AND STATUTES IN YOUR JURISDICTION WHEN CONSIDERING LEGAL QUESTIONS OF ANY KIND.