Claims and Bad Faith Law Blog

Experts Need to Qualify, and with Demonstrably Reliable Opinon Testimony ....

                                    ....  On the Relevant Issue.

    A recent decision by the Federal Tenth Circuit Court of Appeals clarifies and applies both of the twin universal requirements that in order to testify as an Expert Witness, the witness must be shown to be qualified as an Expert on that particular issue and that the witness's Opinion will be reliable.  The illuminating ruling came in the non-Insurance case of 103 Investors I, L.P. v. Square D Co. (10th Cir. Case No. 05-3385, Opinion Filed December 12, 2006).

    In 103 Investors, the plaintiff business suffered a fire loss.  The defendant manufactured a product which the plaintiff alleged was the cause of the fire loss.  The Plaintiff, 103 Investors, proferred the  Opinion Testimony of a Witness as an Expert on the issue of whether the  Defendant's product in essence caused or contributed to the loss.  (10th Circuit Slipsheet Opinion at 9-10.)  The Witness was a fire investigator and the District Court "did not question [his] general qualifications as a fire investigator."  (Slipsheet at 9.)  As such, he was qualified to testify as to the origin of the fire.  (Id.)

    Nonetheless, the District Court excluded the Witness's testimony on the main issue because, the District Court determined, the Plaintiff "had not established that [the witness] had any expertise that was relevant to the question," and the Tenth Circuit affirmed.  (Id. at 9-10.)

    The legal bases of the Tenth Circuit's affirmance in this regard are (1) that the Trial Court is required by Federal Rule of Evidence 702 to make a determination of each Expert's Qualifications to render an Opinion, and (2) that the Trial Court is also required by the United States Supreme Court's  Daubert ruling to make a determination of each Expert Opinion's reliability, before any Expert Witness may testify as such in Federal Court.  (Id. at 8-11.)  Those twin determinations were made by the Trial Court (District Court) in 103 Investors and the Federal Appeals Court now affirms.

    This ruling in a non-Insurance case of course applies to Insurance Cases as well, and it is highly instructive.  As the Tenth Circuit held in this case:  "The district court did not abuse its discretion in excluding [the witness's] testimony on this issue."

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.

Expert Law: Sources and Resources.

    An outstanding new newspaper Commentary analyzes the development of Expert Opinion Evidence in the Courts from Frye (1923) to Daubert (1993) to today in "When Questions of Science Come to a Courtroom, Truth Has Many Faces", by Cornelia Dean and published by The New York Times, Tuesday, December 5, 2006 (page D3, Col. 1).

    This outstanding source cites to two very good resources on the subject of Expert Opinion Evidence generally.  One is Prof. David L. Faigman of the University of California Hastings College of Law.  With other law professors, Prof. Faigman offers a Blog displaying many articles and analyses of noteworthy issues concerning evidence of Expert Witnesses allowed or rejected in lawsuits.  Here is a link to this informative Blog:   Science & Law Blog. 

    The New York Times Commentary also cites to a recognized empirical evidence proponent including for all scientific Experts, Prof. Sheila Sen Jasanoff.  No Blog has been located yet for Dr. Jasanoff, but here is a link to the Web Site posted for her by Harvard:  Dr. Sheila Sen Jasanoff Harvard Web Site Home Page.

    Here is another source with resources regarding Experts, although not yet including Insurance Expert Witnesses it appears:  http://www.daubertontheweb.com/.  This highly useful site regarding Expert Witnesses in general, contains previously posted articles of and from Dr. Sheila Jasanoff, among others.

    For specific case law and experience references to Experts in Insurance Cases, see for example Dennis J. Wall, "Experts, Gatekeepers, and Insurance Issues in Federal Cases" (Daubert Online, 2006) and Dennis J. Wall, "Insurance Expert Witnesses:  When is Their Opinion Testimony Admissible and When is it Desirable?" (Coverage, published by the American Bar Association, 2004).

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.

Assist the Jury, or It's "Katie, Bar the Gate!"

    News reports about a proffered memory Expert are featured here in an October 28, 2006 post.  Yesterday, the Federal District Judge ruled in that criminal case that a memory Expert would not be allowed to testify.  The Judge agreed with the Federal Government prosecutors who argued that the proposed Expert testimony would not assist the jury in understanding or in determining any of the facts at issue in Download United_States_of_America_v. I. Lewis Libby (D.D.C. Criminal Case No. 05-394, Opinion Filed Thursday, November 2, 2006).pdf.  (This linked and fuzzy posting comes directly from the Federal Court.)

     The Judge referred to a case called Daubert in the conclusion  of his long opinion.  Daubert was decided 10 years ago by the Supreme Court of the United States.  In it, the High Court designated each Federal Trial Judge a "gatekeeper" over the question of whether a jury should hear Expert testimony.  (This is one answer by the Supreme Court to the supposed problem, at one time, of  Experts testifying to too much "junk science".)

    The Federal District Judge wrote yesterday:  "To permit the introduction of the testimony proposed by the defendant would be an abdication of that responsibility and would therefore leave the gate this Court is obligated to protect unguarded and without a sentry.  This the Court cannot do, in light of the mandate given to it by the highest Court in the land."

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 LEGAL ISSUE, THE JURISDICTION AND ITS LAWS, WHENEVER YOU TRY TO ADDRESS OR RESOLVE ANY LEGAL QUESTION.

Curbside Consults Are Conduits, Cannot Construct Expert Opinions.

    In an opinion released today, Thursday, November 2, 2006, the Florida Supreme Court spoke to Experts who rely on curbside consults with other Experts in reaching their own Opinions.  The issue arose under the Florida Evidence Code and the Court carefully integrated similar requirements found in the Federal Rules of Evidence.  The specific issue was the standard of care in a medical malpractice case, which the Supreme Court addressed in a holding that will reverberate throughout the proffered testimony of Insurance Expert Witnesses and of all Experts, in Download Linn_v. Fossum (Florida Supreme Court Case No. 05-134, Opinion Filed Thursday, November 2, 2006).pdf.

    The issue addressed by the Florida Supreme Court this day, the majority says, is to "decide as a matter of law whether the rules of evidence allow an expert to testify on direct examination that he or she consulted with other experts".  The Expert Witness in that case described her conversations with other physicians as "curbside consults".  The Court holds that this type of a consult is not admissible on direct examination in which the Expert Witness offers her or his Opinions.

    This prohibition on the admissibility on direct examination of the particular Expert's curbside consults or inadmissible hearsay conversations with other Experts, runs afoul of Section 90.704 of the Florida Evidence Code in today's decision.  That provision, reprinted below,  allows an Expert  to  base an opinion on "facts or data" perceived  by the Expert, or  made known to the  Expert, at or before trial.  These "facts or data" do not need to be admissible in evidence, if they are of a type reasonably relied on by Experts in the field.

    "Opinions of other experts who have no first-hand knowledge of the case that are solicited by the testifying expert constitute neither 'facts' nor 'data'," the Supreme Court of Florida held today.  The Court pointedly observed that Section 90.704 "was modeled after Federal Rule of Evidence 703", reprinted below, which was discussed at length in the Court's opinion.  In the end, the Florida High Court's holding concentrates, as it has to concentrate, on Florida law in this Florida case:  "We therefore hold as a matter of law that under the Florida Evidence Code an expert is not permitted to testify on direct examination that the expert relied on consultations with colleagues or other experts in reaching his or her opinion."

    It is readily apparent from the majority opinion in this new Florida Supreme Court case that the majority likely intends for its holding to be applied beyond cases of medical malpractice.  Further, readers can decide for themselves if the provisions quoted by the Florida Supreme Court Justices from Florida Evidence and from Federal Evidence, below, will lead to the same result under the Federal Rules of Evidence:

Florida Statute (adopted long ago as a rule by the Supreme Court of Florida exercising its exclusive rule-making authority) Section 90.704 provides:

    The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, the expert at or before the trial.  If the facts or data are of a type reasonably relied upon by experts in the field to support the opinion expressed, the facts or data need not be admissible in evidence.

Federal Rule of Evidence 703, which the Florida Supreme Court noted was the basis for Florida's Section 90.704, is quoted as follows in footnote 3 of the majority opinion:

    The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing.  If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted.  Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.

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 LEGAL ISSUE, THE JURISDICTION AND ITS LAWS, WHENEVER YOU TRY TO ADDRESS OR RESOLVE ANY LEGAL QUESTION.

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.