Legal Fee Analysis Conducted by Litigation Expert Witness held to meet Reliability Standard under Daubert

Legal Fee Analysis Conducted by Litigation Expert Witness held to meet Reliability Standard under Daubert

The Plaintiff, New Prime, Inc. (“Prime”), a large trucking company, enlisted Greenfield as an expert to assess the reasonableness of their decision to hire the Gibson Dunn law firm for defense in a wrongful death lawsuit arising from a tractor-trailer collision in New Mexico in December 2015. In the ongoing lawsuit, the Plaintiff accused AmWins and McGriff Insurance Services as successor in interest to Regions Insurance, Inc. (“Regions”), the Defendants, its insurance brokers, of negligence in procuring an insurance stack to protect them against liability for such collisions, claiming that they failed to advise Prime about particular insurance policy issues and Prime’s insurance needs. This alleged negligence, according to the Plaintiff, resulted in a coverage gap that resulted in Plaintiff having to pay significant attorney’s fees in relation to the 2015 wrongful death lawsuit.

Prime claimed it had to pay $9.8 million in attorneys’ fees for defending the underlying wrongful death lawsuit. Prime also alleged that Regions and AmWins failed to advise it that it could be exposed to the unreimbursed attorneys fee if Prime spent more than $5,000,000 defending a single action

Prime hired Gary Greenfield from Litigation Cost Management (LCM) to justify the reasonableness of the attorneys’ fees incurred as well as the reasonableness of hiring Gibson, Dunn & Crutcher LLP as defense attorneys  for the Herrera Suit. However, the Defendants sought to exclude Greenfield’s opinions, report, and testimony on several grounds. They argued that Greenfield lacked the necessary experience to provide opinions on these matters, lacked a reliable scientific method, and couldn’t assist the jury in understanding the issues. It was contended that Greenfield’s methodology was hollow and lacked credibility, as he allegedly drew conclusions and speculated rather than offering reliable expertise or scientific data. The Defendants also argued that Greenfield’s testimony and report did not meet the standard set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., as he didn’t offer specialized knowledge or utilize reliable scientific data.

Litigation Expert Witness

Gary Greenfield is the founder of Litigation Cost Management (LCM), a consulting firm specializing in legal and expert fee analysis. Since the inception of LCM, Greenfield has conducted numerous analyses of legal and expert witness fees and expenses across a wide array of case types and sizes, including individual actions, multi-party suits, and class actions. His work extends to consulting with law firms and their clients on matters such as law firm billing practices, effective litigation management, and legal bill analysis and auditing procedures. Greenfield holds a Bachelor of Arts degree from Stanford University and obtained his Juris Doctor from the University of California, Berkeley, School of Law.

Discussion by the Court

The Defendants pressed for the exclusion of Greenfield’s testimony regarding the reasonableness of hiring Gibson Dunn as defense attorneys, contending that the jury could understand the Plaintiff’s reasoning without expert input. However, the Court disagreed, noting that the choice of a law firm, especially one that does not necessarily specialize in tort defense, is likely to confuse the jury. Greenfield, the founder of Litigation Cost Management (LCM), had extensive experience in legal fee analysis and consulting since founding LCM in 1991. With a background as a litigator for fifteen years and a law degree from Berkeley, Greenfield was deemed qualified to evaluate the reasonableness of hiring a specific defense firm for the New Mexico lawsuit. The Court found no indication that Greenfield had been retained to opine on the Defendants’ alleged negligence but rather focused solely on the Plaintiff’s defense of the underlying auto collision lawsuit.

In their second point, the Defendants argued that Greenfield lacked the necessary experience in litigating personal injury cases, thus making him unfit to opine on the reasonableness of attorney fees in a wrongful death suit arising from a truck collision. However, the Court noted that Greenfield had managed a litigation management  firm specializing in analyzing and consulting on legal fees for thirty-three years. The Defendants failed to demonstrate how prior experience as a personal injury attorney was essential for offering expert opinions on attorney fees, even in cases related to personal injury or wrongful death. They did not specify what unique aspects of a wrongful death case would require extensive personal experience as a litigator in that field to opine on fee reasonableness. The Defendants’ argument seemed to conflate prior experience as a wrongful death litigator with expertise in evaluating attorney fees across various cases. The Court concluded that the focus of the Greenfield’s report on the reasonableness of attorney fees associated with the underlying case was relevant, rather than the broader reasonableness of the case itself.

In their final point, the Defendants requested the Court to exclude Greenfield’s testimony due to allegedly insufficient data and unreliable techniques and methods in his analysis. They argued that his testimony lacked reliability because there was insufficient data supporting his conclusions regarding the amount at risk and the complexity of legal or factual issues in the underlying wrongful death lawsuit. However, the Court found that Greenfield’s report indicated he had considered ample data when evaluating the risk faced by the Plaintiff in the lawsuit. While the Defendants suggested additional evidence Greenfield could have obtained to inform his analysis, including speaking to lawyers involved in similar cases in the same jurisdiction, they failed to provide authority indicating that the absence of such evidence rendered his opinion unreliable. The Court noted that Greenfield’s opinion cited various data, such as prior verdicts for similar cases and mock jury results, demonstrating sufficient reliability.

The Defendants’ final argument centered on the alleged unreliability of Greenfield’s opinion, claiming that he failed to investigate certain aspects related to the complexity of the underlying lawsuit, particularly regarding the Plaintiff’s driver’s sleep apnea. They contended that Greenfield didn’t explore factors such as  “how many accidents throughout the United States were caused by sleep apnea, how many personal injury lawsuits involve a commercial vehicle having allegations of sleep apnea, how common allegations of sleep apnea is in truck accident lawsuits, or what experience Gibson Dunn had in defending against trucking cases involving sleep apnea allegations before taking the underlying matter”. However, the Court noted that Greenfield’s opinion highlighted various other reasons for complexity, such as the types of damages sought and the volume of pretrial motions. Therefore, the Court found that Greenfield’s opinion provided sufficient data to demonstrate reliability regarding the complexity of the underlying lawsuit.


The Court denied Defendants’ Daubert motion to exclude reports, testimony and opinions of Plaintiff’s Expert Gary Greenfield.

The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

Key Takeaways

The case highlights the crucial role of expert testimony, particularly in complex legal matters such as evaluating the reasonableness of attorney fees and hiring decisions in litigation. Gary Greenfield’s qualifications and experience were scrutinized by the Defendants, who attempted to discredit his expertise. Despite their arguments, the Court recognized Greenfield’s extensive background in legal fee analysis and consulting, which ultimately bolstered the credibility of his testimony. Greenfield’s testimony focused on assessing the reasonableness of Prime’s decision to hire Gibson Dunn as defense attorneys in the wrongful death lawsuit. This evaluation involved considering various factors, such as legal fees incurred and the firm’s suitability for the case despite not specializing in tort defense. Defendants challenged Greenfield’s expertise based on his lack of specific experience in personal injury litigation. However, the Court reasoned that his overall experience in legal fee analysis and consulting was sufficient to render him qualified to provide expert opinions in the case. The Defendants further contested the reliability of Greenfield’s analysis, arguing insufficient data and unreliable methods. Despite these challenges, the Court found Greenfield’s analysis sufficiently supported by ample data, demonstrating reliability in assessing the risks and complexities of the underlying lawsuit. Greenfield’s opinion addressed various other aspects of the case’s complexity, such as the types of damages sought and pretrial motions volume. This comprehensive assessment contributed to the Court’s determination of the reliability of his testimony.

Case Details

Case CaptionNew Prime, Inc. v. McGriff Ins. Servs., Inc.
Docket Number6:22cv3037
CourtUnited States District Court, Missouri Western
Citation2024 U.S. Dist. LEXIS 25620
Order DateFebruary 14, 2024


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