This is an insurance coverage dispute arising from a car accident between Plaintiffs, in which Plaintiffs seek to enforce a liability insurance policy issued by Defendant to Plaintiff Anita Myers that was later assigned to Plaintiff Sarah Montalvan.
Defendant sought to exclude the testimony of Peter Knowe, Plaintiffs’ designated insurance claims handling expert while Plaintiffs sought to exclude the opinions of GailAnn Stargardter, Defendants’ designated insurance claims-handling expert.
Insurance Expert Witness
Peter Knowe has specialized qualifications and experience in adjusting, investigating, and evaluating insurance claims. During his career in the insurance industry spanning 26 years, he was trained in evaluating and responding to policy limit demands and time-limited demands.
GailAnn Y. Stargardter is a practicing attorney specializing in “insurance coverage and bad faith,” and has been practicing in Washington since 1988, and California since 2007.
Stargardter’s practice is limited to insurance coverage and bad faith. Stargardter was previously employed as a claim attorney for an insurance company, where she reviewed files to “determine whether claims were being handled consistent with state and company requirements.” She also provides training to insurance clients regarding the California state settlement regulations, is a “co-author of California Insurance Law (The Recorder (2015)),” and previously testified as an expert witness.
A. Defendant’s Motion to Exclude the Expert Testimony of Peter Knowe
1. Qualifications
Based on Knowe’s description of his experience and attached curriculum vitae, the Court found that Knowe is qualified to provide expert testimony in this case.
Therefore, the Court denied the Knowe motion insofar as it sought to exclude, on the ground of Knowe’s lack of qualifications, his testimony regarding industry customs and practices in handling insurance claims.
2. Reliability and Methodology
Plaintiffs offered Knowe as an expert on the topic of whether Defendant “complied with the practices and standards of the insurance industry in its handling of the liability claim brought by Sarah Montalvan against Anita Myers.”
Based on Knowe’s review of various materials, including Defendant’s claim file, the deposition transcript of Starla Tuck, Defendant’s claims adjuster, and other case specific documents, Knowe opined that Defendant’s claim handling “fell below the insurance industry standard of care” in twelve different ways.
Based on the Court’s review of the Knowe Report, the Court agreed with Defendant that the Report (1) did not sufficiently articulate the bases for Knowe’s proffered “industry standards,” and (2) lacked a described nexus between the described industry standards and Knowe’s opinions.
Analysis
In his Report, Knowe listed sixteen standards “for claims handling,” which are “national in scope and apply in all states.” However, the Knowe Report did not identify the specific source for each standard.
Other than to cite his training and experience, the Knowe Report did not explain how Knowe derived his sixteen standards from the above-referenced insurance industry texts and articles.
In addition, as articulated by Defendant during the hearing on the motions, it is unclear whether each of the sixteen standards Knowe describes in his report were applicable when Defendant evaluated Plaintiffs’ claim in 2018. Further, even if the Knowe Report were to describe the basis for the standards described therein, it is unclear how Knowe “applied the principles and methods reliably to the facts of the case.”
Nevertheless, the Court found that the above deficiencies may be curable. Based on Knowe’s described experience with insurance claims handling as a senior technical representative, manager of California-based field offices at a nationwide insurance company, and experience as an expert witness in other proceedings, the Court is inclined to give Knowe the opportunity to explain how he derived the 16 standards, whether those standards existed at the time of the claim, and how he applied the principles and methods reliably to the facts of this case.
B. Plaintiffs’ Motion to Exclude GailAnn Stargardter
1. Qualifications
Plaintiffs presented no argument that Stargardter is unqualified. Based on Stargardter’s described experience, the Court found that she possesses sufficient “knowledge, skill, experience, training, or education” to provide expert testimony regarding insurance claim handling.
2. Ultimate Issue Testimony
Plaintiffs argued that “the Stargardter Report is a legal brief masquerading as expert testimony” in that the Stargardter’s opinions are no more that impermissible conclusions and are one-sided, incomplete, and unreliable.
Based on the Court’s review of the Stargardter Report and Stargardter Rebuttal, the Court concluded that the Stargardter Report and Stargardter Rebuttal provided legal opinions on ultimate issues of law, and such opinions should be excluded.
Anlaysis
Stargardter opined that Defendant’s handling of Plaintiffs’ claims “was within the standard of care, consistent with the standards, customs, and practices in the insurance industry, compliant with the CUCPA and the Regulations, and compliant with National General’s own internal guidelines.”
In particular, according to Stargardter’s opinion, Defendant “conducted a full, fair, objective and timely investigation of Sarah Montalvan’s claim,” “fully, fairly, objectively, proactively, and timely evaluated Sarah Montalvan’s claim, and extended settlement offers commensurate with the claims as documented by her counsel.”
This opinion, plainly, amounts to legal analysis. The Stargardter Report and Stargardter Rebuttal rely on legal authorities to assert that Defendant’s handling of Plaintiffs’ claims was “within the standard of care, consistent with the standards, customs, and practices in the insurance industry, compliant with the CUCPA and the Regulations, and compliant with National General’s own internal guidelines.”
The only portion of Stargardter’s testimony that does not provide legal analysis is what Defendant characterize as “a detailed claim-file chronology tracking Defendant’s handling from the initial loss report on September 24, 2017, through the filing of the suit.”
Based on the Court’s review of the Stargardter Report and the parties’ arguments at the hearing, both the Stargardter Report and Stargardter Rebuttal offered legal opinions that will not be helpful to the jury
Held
Having considered the parties’ submissions, oral arguments, the relevant law, and the record in this case, the Court ordered the parties’ respective experts to file supplemental expert reports that address the deficiencies and reserved ruling on the motions until after the supplemental reports are filed.
Key Takeaway
In describing the bases for her opinions, Stargardter does not reference her experience handling insurance claims or Defendant’s internal guidelines. Neither the Stargardter Report nor Stargardter Rebuttal describe whether Defendant’s conduct was reasonable based on industry practices and norms.
Plaintiffs Melissa Pitkin and Dan Grout own a home together in Healdsburg, California. They hold a homeowner’s insurance policy from State Farm, policy number 57-C4-6752-1 (the “Policy”), which covered certain losses to their home and all of its contents. The Policy included the “main policy form” (FP-7955, CA) as well as a “homeowners endorsement form” (FE-3422). Subject to the Policy’s terms, conditions, and exclusions, the Policy included “Coverage B – Personal Property” limits of $506,574, and other various special limits. Regarding settlement of Coverage B claims, the Policy provides for settlement of damaged personal property in several ways, including actual cash value (“ACV”), market value, and replacement cost (“RC”).
On August 20, 2020, the Walbridge Fire burned down the Plaintiffs’ home. Having lost their home and personal possessions, the Plaintiffs tendered a claim to State Farm for their losses under the Policy. State Farm accepted the claim and adjusted their losses pursuant to the Policy’s terms, which stated that the plaintiffs are entitled to recover ACV for their personal property losses. On December 16, 2022, and January 24, 2023, the Plaintiffs received partial payments from State Farm for their personal property contents losses. State Farm also sent the Plaintiffs “loss payment worksheets” that showed their ACV benefits for their personal property.
For all items of property where sales tax was applicable, State Farm depreciated sales tax in calculating ACV.
The Plaintiffs filed this class action, alleging that State Farm violates California law by depreciating sales tax as a component of RC when calculating ACV.
State Farm sought to exclude the opinions of Plaintiffs’ experts, Greg J. Regan, David Melzer and Eugene Peterson while Plaintiffs filed a motion to exclude the testimony of State Farm’s primary expert witness, Dr. Duane L. Steffey.
Accounting Expert Witness
Greg Joseph Regan is a partner in the Forensic Consulting Services Group of Hemming Morse, LLC, and is a licensed CPA in California.
David Melzer has worked in the insurance industry since 2011 in various specialist capacities. He worked for Travelers Insurance from 2013 to 2020, where he held positions including adjuster, technical specialist, and claims manager.
After that, he started his own public adjusting firm, called Property Claims Consultant, Inc., where he handles first and third-party property claims, including personal property claims.
He has held the position of President of Property Claims Consultant, Inc. since he started the firm in November 2020. He has “significant experience in processing and analyzing personal property insurance claims” and “experience working with industry-standard software used to process and track personal property claims, including Xactimate or XactContents.”
Eugene Peterson built his first home in 1974 – and has been a home builder, remodeler, and restoration contractor for over 35 years. He is a Past President of the Utah Home Builders Association and the Greater Salt Lake Home Builders Association. He is the CEO of Advise And Consult, Inc., an expert witness & consultant for restoration, personal property & construction related matters in the United States and Canada. Peterson has facilitated peer group meetings for Business Networks, Inc., and was an advisor, consultant & certified trainer for Xactware, Inc. (construction estimating software) for several years. He also actively performs insurance appraisals as an umpire or appraiser.
Dr. Duane Leon Steffey holds a Bachelor of Science in history and mathematics, a masters in statistics, and a Ph.D. in statistics from Carnegie Mellon University. He has served as a consulting statistician for over thirty years, with a “breadth of applications in engineering, health, environmental science, and civil justice.”
He is an elected Fellow of the American Statistical Association since 2009, as well as an Elected Member of the International Statistical Institute since 2015.
Regan indicated that he was “asked to provide a methodology to calculate available classwide damages.” State Farm produced an Excel file known as the “Combined Pitkin Dataset.”
If a claim “involves more than a few items or is not settled during a first contact” the claims personnel may “utilize the XactContents® tool to assist in valuing lost property for claim settlement purposes.” Third party entity Verisk owns the XactContents® tool.
To create the Combined Pitkin Dataset for this litigation, third-party Verisk first created a report containing data regarding personal property claims during the class period with an XactContents® actual cash value estimate.
Regan clarified that while his “methodology to calculate damages” was laid out in his initial report, the supplemental report was meant to apply the methodology to the Combined Pitkin Dataset. Regan then proposed two alternative “scenarios” for calculating damages. Under the first scenario, damages would equal the amount of Sales Tax Depreciation applied to a claim, capped by any RC benefits available under the policy. Under the second scenario, Regan allocated Sales Tax Depreciation proportionally by comparing the claimant’s remaining RC benefits to the total recoverable depreciation and then applying that percentage to the amount of Sales Tax Depreciation.
The crux of State Farm’s motion to exclude concerns the reliability of Regan’s opinions. Specifically, State Farm claimed Regan’s opinion hinges on (1) unreliable data, (2) unreliable identification of class members, and (3) incompatible and unreliable damages “scenarios.”
a. Reliability
State Farm first argued that Regan’s reliance on the Combined Pitkin Dataset lacked the “foundation” necessary to survive a Daubert motion.
State Farm’s challenge is best understood as an attack on the assumptions underlying Regan’s analysis—mainly, that XactContents® is an accurate tool for measuring damages in this case.
Regan indicated that he relied on State Farm’s own records, testimony from State Farm employees, “validation exercises,” “extensive testing,” and “adopting the more conservative input for purposes of measuring damages” when a disagreement in the data arose.
The Court concluded that Regan has established by a preponderance of the evidence that his opinion is reliable and admissible, subject to cross-examination and presentation of contrary expert testimony.
According to State Farm, Regan’s “three new groupings of purported class members (not reflected in the class definition or his prior opinions) produce unreliable and patently incorrect results.”
However, Regan “organized his damage calculations in three groups to reflect the different circumstances of those groups.” While each group may present different factual circumstances, Regan “applied the same methodology to calculate damages across all groups.”
State Farm finally challenged Regan’s two damages scenarios as unreliable and invalid. Regan sufficiently explained in his Report and Supplemental Report the reason for having two damages “scenarios,” how he reached those scenarios, and the methodological basis for each.
b. Untimely Opinions
State Farm argued in the alternative that Regan’s opinions in the Supplemental Report should be excluded as untimely and improper new opinions.
Regan’s Supplemental Report was disclosed two months after the Rule 26 disclosure deadline and less than one month before the rebuttal deadline. Because its own expert, Steffey, opined that the Supplemental Report “substantially revised Regan’s opinions,” State Farm urged that the Court find his “new” opinions as untimely under Rule 702. Plaintiffs responded by pointing out that the parties jointly agreed to extend fact discovery and adjust the pretrial schedule to allow for State Farm to produce the Combined Pitkin Dataset. As a result, Regan produced his Supplemental Report on September 25, 2025—a date agreed upon by the parties in their joint request to adjust the pretrial schedule.
2. David Melzer
a. Methodology
Melzer indicated that he was “hired to provide opinions on . . . the frequency of personal property claims with State Farm, the ascertainability of these claims through available databases, and whether the claims of Plaintiffs Pitkin and Grout fall within the proposed class.”
Melzer’s proposed methodology to estimate the total number of potential class members is as follows. To estimate the total volume of personal property replacement claims for State Farm in California from 2015 to the present, he analyzed the number of claims in a submarket: San Diego. He chose San Diego as a representative example because claims throughout California would “typically be consistent with personal property claims made in San Diego.”
Using that data, Melzer estimated the total number of insurance claims in San Diego across all insurers by dividing the number of Travelers’ claims by its 3.68% market share (a percentage market share that is available on the California Property and Casualty Market Share Report published by the California Department of Insurance).
He then consulted the California Property and Casualty Market Share Report (the “Market Report”) issued by the California Department of Insurance from 2015-2023 and determined that State Farm consistently has “over 8.5% of the Property and Casualty Insurance Market in California.”
Melzer goes on to explain that based on his familiarity with Xactimate and XactContents®, he believes that “given the detailed data that insurance companies maintain and given the flexibility and power of Xactimate/XactContents, it is [his] opinion that State Farm can create a report, or export the necessary data, that will allow for the identification of all personal property insurance claims where State Farm depreciated the taxes. From that report, Plaintiffs will be able to identify the members of the Class.”
b. Class Member Identification
State Farm maintained that the Court must exclude any class identification opinion from Melzer, as he “has not purported to identify class members” and instead “conjectures that someone else can.”
It similarly urged that Melzer’s “conjecture that someone else can reliably and feasibly identify specific class members based solely on the Combined Pitkin Dataset also lacks sufficient foundation, conflicts with Melzer’s other admissions, and is therefore inadmissible.”
Plaintiffs contended that Melzer did, in fact, “analyze the capabilities of the Combined Pitkin Dataset to ascertain the members of the class.”They highlighted that Melzer provided a “detailed analysis of the capabilities of XactWare products, including XactContents.”
“While State Farm may disagree” with this analysis, Plaintiffs concluded, “that is not a basis for the Court to exclude Melzer’s conclusions based on his extensive experience.” The Court agreed.
c. Depreciation Standard Industry Practices
State Farm similarly sought to exclude Melzer’s opinions on “sales tax depreciation practices for the insurance industry as a whole.”
Plaintiffs responded by highlighting Melzer’s “more than a decade of experience regarding the adjustment of insurance claims,” including working for Farmers, Travelers, and during his “nearly five years as a public adjuster working with multiple insurers from 2020 to the present.”
Much of that time was spent working with XactWare products, including XactContents®, which Plaintiffs believe render him qualified to “offer opinions as to the industry standard for adjustment of contents insurance claims.”
As with his other opinions, the Court found that it is more likely than not that Melzer meets the four requirements. While a fact finder may conclude that State Farm’s sales tax depreciation practices are not what Melzer claims them to be, that does not render his opinion and testimony inadmissible.
d. Rule 26 Testimony
Plaintiffs acknowledged that “they, and State Farm, are precluded from offering undisclosed expert opinions.” But they maintained that “Melzer’s opinions as to the typicality of insurers not depreciating sales tax were explicitly disclosed in his report.”
No party may offer undisclosed expert opinions at trial. The Court held that the example in the preceding paragraph was disclosed and will not be excluded.
3. Eugene Peterson
a. Methodology
Peterson concluded that “XactContents® software contains global and line-item settings that allow an insurance company to apply depreciation based on one of three methods: 1) percentage, 2) by a fixed dollar amount, and 3) by age with an adjusted condition.” He opined, “the software allows complete control over how depreciation is calculated, so each insurance company can set its policies for depreciation without needing to customize the software. From the software’s perspective, a user can determine what line items are to be depreciated and what is to be depreciated in each line item, e.g., sales tax.”
b. Opinions on XactContents® Data Extraction
State Farm “did not dispute Peterson’s ability to testify regarding what the XactContents® tool is and how it may be used.” Instead, it sought to exclude Peterson’s “feasibility opinion—that the Combined Pitkin Dataset in this matter can be used by someone else to reliably identify class members or calculate damages.”
The Court found that Peterson sought to offer a relatively narrow opinion with respect to the structure and abilities of XactContents® to assist Plaintiffs in calculating damages in this case. He has significant experience working with XactContents®.
4. Duane Steffey
Steffey was hired by State Farm to “evaluate the basis and foundation for Regan’s, Melzer’s, and Peterson’s opinions” at class certification. State Farm also disclosed Steffey as a rebuttal expert to Regan’s supplemental report.
a. Class Membership
Plaintiffs took issue with how Steffey criticized Regan’s identification of 41,153 class members in his Supplemental Report.
State Farm countered that Steffey’s rebuttal report criticizing Regan’s “new approach to identifying class members and calculating damages” was “based on his knowledge and education in statistics, previous experience, and the materials he reviewed.”
The Court agreed with State Farm that exclusion is not warranted. Steffey engaged in a thorough review of the materials provided to him, including all exemplar claims identified by Regan. He then identified at least one “exemplar” Plaintiff who potentially lacked injury and damages, thus raising questions about Regan’s methodology for identifying class members.
b. Damages Calculations
Plaintiffs also sought to exclude Steffey’s criticism that Regan’s damages “scenarios” are “unreliable.”
The Court found that Steffey raised important questions about Regan’s methodology that go to the heart of this dispute—questions regarding standing, injury, and how to identify class membership. His opinions are relevant. They can be tested. And they may assist the trier of fact in resolving the question of damages and standing in this case.
c. Data Fields Interpretation
Plaintiffs sought to exclude Steffey’s claim that some of Regan’s “descriptions of certain data fields in the Combined Pitkin Dataset ‘have not been corroborated by anyone with requisite knowledge.’”
The Court found that Steffey properly critiqued Regan’s assumptions in the Combined Pitkin Dataset, a topic which he, as a statistician, may opine. That Steffey recognized he cannot judge the accuracy of the fields is a different question than identifying Regan’s failure to corroborate the Dataset.
d. Substantial Revision Opinion
Plaintiffs finally sought to exclude Steffey’s opinion that Regan’s supplemental report represents a “substantial revision” to his analysis in the original report.
Credibility is always an issue for the jury to consider, and Steffey’s opinion about the “drastic” change “underscores the unreliability of Regan’s approach generally.”
State Farm is entitled to present this opinion as an attack on Regan’s credibility at trial. In sum, the Court will not exclude Steffey’s testimony.
Held
The Court denied the parties’ motions to exclude, as each request raises issues of credibility—a question reserved for the factfinder—instead of admissibility.
Key Takeaway
Plaintiffs must show it is more likely than not that: “(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.” Applying this standard, State Farm argues that Plaintiffs have not met their evidentiary burden.
This civil action arises from a motor vehicle accident involving Plaintiff Sarah Kollman on February 20, 2019. The other driver, Taylor Bonello, was at-fault for the collision, which Plaintiff alleged caused her physical injuries.
At the time of the collision, Bonello was insured for liability with Progressive Insurance company for $100,000.000. Plaintiff had an underinsured motorist (UIM) policy with Defendant State Farm Mutual Automobile Insurance Company. After receiving permission from Defendant, Plaintiff settled with Bonello for the $100,000.000 policy limit. Plaintiff then demanded the full UIM limits of $100,000.000 from Defendant under her policy. Defendant refused to pay, saying that all of Plaintiff’s damages were covered by the money she received from Progressive. In response, Plaintiff brought the instant lawsuit for breach of contract and breach of implied duty of good faith and fair dealing.
Plaintiff sought to limit the opinions and testimony of two of Defendant’s proposed expert witnesses, Dr. Haley Burke and Keith Olivera while Defendant sought to limit the testimony of Plaintiff’s proposed expert Jeremy A. Sitcoff.
Neurology Expert Witness
Haley A. Burke is board-certified in neurology, psychiatry and interventional pain management. Burke has first-hand experience and training working with breast cancer patients who had similar surgeries from when she studied at Anderson Cancer Center in Houston, Texas.
Keith R. Olivera is an attorney duly licensed to practice law in Colorado who has practiced in excess of 30 years in various fields of insurance, including good faith/bad faith law. He is an expert in the fields of civil litigation and insurance industry standards.
Jeremy Andrew Sitcoff has been licensed to practice law in Colorado for over twenty-seven years. For more than twenty-two years approximately 85% of my practice has been devoted to insurance coverage, claims handling practices and procedures, and insurance breach of contract and bad faith on behalf of policyholders.
Plaintiff argued that Burke, who is certified in neurology, psychiatry, and pain management, is not qualified to make opinions regarding the Traffic Accident Report or Plaintiff’s lumpectomies and breast reconstructive surgery, Lyme disease, sinus and eye surgery, mental health, dental health, shoulder pain, and gastrointestinal issues.
1. Burke’s qualifications
Burke did not render an opinion regarding the Traffic Accident Report; she merely reiterated how the State of Colorado defines an “01” severity for an injury. The Court cannot identify where in Burke’s report Plaintiff claimed that she stated an opinion on the Traffic Accident Report. In addition, Burke’s discussion of PTSD is included as part of a summary of another provider’s neurocognitive testing of Plaintiff. As none of these comments involve Burke’s own opinions or “scientific, technical, or other specialized knowledge,” they are not properly challenged under Rules 702 and 403.
Next, the fact that Burke did not cite any articles or provide a more detailed basis for her opinion that Plaintiff’s sinus and cataract surgery, mold exposure, fall, gluten intolerance, and Lyme disease potentially contributed to her symptoms did not necessarily make these opinions unreliable.
The Court found that Burke is qualified to opine on the possible effects of Plaintiff’s lumpectomies, breast reconstructive surgery, shoulder pain, and mental health. The Court also found that Burke is qualified to know that these “are major surgeries and would be expected to contribute to stress and pain for many people.”
Finally, Burke is also qualified and permitted to comment on the tests and practices employed by other providers who treated Plaintiff. As long as a subject is within an expert’s area of expertise, as is the case here, he or she may conclude whether he or she agrees with another’s data and opinions. Burke’s comments are not attacks on the other providers’ credibility but rather their substantive practices.
2. Burke’s Rebuttal Report
In contrast to Burke’s initial report, the rebuttal report is largely an attack on the credibility of Plaintiff’s experts. She specifically called into doubt the qualifications of Plaintiff’s experts and the believability of their testimony.
Therefore, the Court appropriately excluded portions of Burke’s rebuttal commenting on the qualifications of Plaintiff’s expert witnesses.
Other parts of the rebuttal report, such as the section discussing the records from Parker Vision Specialists, are appropriately limited to contradicting Plaintiff’s expert’s opinions and do not put forward new arguments or theories. Therefore, these portions of the report are admissible.
B. Keith Olivera
Plaintiff argued that several opinions of Defendant’s insurance expert, Olivera, should be excluded because he impermissibly drew legal conclusions, cited unreliable industry standards, and included irrelevant information.
1. Legal conclusions
Plaintiff cited 21 opinions that it argued are legal conclusions regarding the reasonableness of Defendant’s actions and complicity with industry standards.
The Court agreed that throughout Olivera’s report, he impermissibly conflated Colorado insurance industry standards with case law to draw conclusions about the reasonableness of Defendant’s actions.
Defendant stipulates to striking opinions 10, 11, 15, and 19. In addition, opinion 14 is not an application of either industry or legal standards to the facts of the case. While it is Olivera’s opinion that Burke’s testimony supported Defendant’s position, opinion 14 is not a conclusion regarding whether Defendant’s evaluation of or reliance on Burke’s report was in line with industry or legal standards. Therefore, the Court found Plaintiff’s argument is not applicable to opinion 14 and will not strike it.
Out of the remainder of the 21 opinions cited by Plaintiff in this section of their motion, opinions 4, 5, 6, 9, 12, 13, 16 are permissible testimony regarding Defendant’s conformity with industry standards, not legal standards. On the other hand, opinions 2, 8, 17, 18, 20 are impermissible conclusions regarding the reasonableness of Defendant’s conduct, which is a matter of law. The Court also excluded opinions 1, 3, 7, and part of 21 because they are conclusions resulting from application of case law and statutory law to the facts of the case.
2. Support for industry standards
Plaintiff challenged 7 of Olivera’s opinions as based on industry standards that are not codified and have not been shown to be generally accepted. The Court disagreed, finding that at the beginning of his report, Olivera adequately stated a basis for the industry standards he cited.
In his report, Olivera “identifies what he perceives as the relevant insurance industry standards, explains those standards, and states that he relied on his experience in the insurance industry in forming his opinions as to whether State Farm met those standards.”
He clearly tied each of his opinions to an identified industry standard and stated the basis for that standard, citing Colorado case law, statutes, and his 40 years of experience in the insurance industry. Therefore, the Court found that the seven challenged opinions are not unsupported ipse dixit statements but are instead based on clearly articulated sources.
3. Ties to factual observations
Plaintiff argued that Olivera’s report failed to connect the case law and standards cited in pages 6-7 of his report to the facts of this case.
As discussed above, Olivera may not directly opine on whether Defendant’s conduct was unlawful under the case law and statutes cited. However, courts in this district have noted that case law and statutes inform insurance industry standards, and experts are permitted to testify whether a Defendant’s conduct “conformed with specific industry standards, including ones identified in Colorado statutes.”
Therefore, Olivera cannot tie the case law and statutes in pages 6-7 of his report directly to the facts of the case. However, as Olivera used the law and statutes to provide a basis for the industry standards he applied throughout his opinion, his discussion of them is admissible.
4. Methodology and supporting facts
Plaintiff argued that Olivera failed to provide any methodology or supporting facts for two of his opinions. However, Plaintiff’s argument reads not as a challenge to Olivera’s methodology but rather as a rehash of her argument that Olivera did not provide a basis for the industry standards cited. The Court has already discussed that Olivera provided sufficient bases for the industry standards he applied. To the extent Plaintiff disagreed with Olivera’s conclusion that it was consistent with industry standards for Defendant to consider Burke’s IME report, she may address her disagreement through cross-examination at trial.
5. Rebuttal Opinion
Plaintiff objected to Olivera’s rebuttal statement that he disagreed with Sitcoff’s “discussion of the case law, statutes, and regulations that provide Colorado insurance industry standards” to the extent it is inconsistent with his own.
Plaintiff argued that it is unclear what Olivera specifically opposes. Olivera’s general statement of disagreement is supported by the lengthy discussion of case law, statutes, and regulations included in his initial report and to which he refers to as the basis for his disagreement in the rebuttal. He did not seek to introduce new facts or information to support his disagreement. Therefore, the Court found that Plaintiff is adequately on notice for the basis upon which Olivera disagreed with any of Sitcoff’s contrasting opinions.
C. Jeremy Sitcoff
Defendant argued that eight of Sitcoff’s opinions are not supported by any referenced industry standard and that he impermissibly drew legal conclusions from applying the law to the facts of the case.
The Court excluded Opinions 2, 5, 6, and 7 as impermissible legal conclusions because they commented on the reasonableness of Defendant’s investigation, which was a legal determination reserved for the jury. In contrast, the Court held that Opinions 3, 4, and 8 drew conclusions based on industry standards rather than legal standards and were therefore admissible.
Held
The Court granted in part and denied in part Plaintiff’s motion to limit the testimony of Defendant’s retained expert Haley Burke.
The Court granted in part and denied in part Plaintiff’s motion to limit the testimony of Defendant’s insurance industry expert Keith Olivera.
The Court granted in part and denied in part Defendant’s motion to exclude the opinions of Jeremy Sitcoff.
Key Takeaway
Physicians frequently rely on medical knowledge, physical examination, and patient history to form opinions, all of which are “routinely admitted in federal courts because this methodology is widely accepted among the relevant scientific community.”
Case Details:
Case Caption:
Kollmann V. State Farm Mutual Automobile Insurance Company
On September 24, 2024, Plaintiff Pharilyn Chhang filed the operative second amended complaint against Defendants West Coast and Sergio Madrigal, alleging causes of action under the Fair Housing Act (FHA), California Fair Employment and Housing Act (FEHA), wrongful eviction; invasion of private right to occupancy; and breach of duty. Plaintiff claimed that she is a disabled person who requires her emotional support animal, Onyx, to reside with her.
Defendants intended to call Robert S. Griswold to testify as an expert witness “regarding the standard of care for a property owner/manager as it relates to accommodation requests, insurance issues and costs, ineligible risks and liability exposure and related issues.” However, Plaintiff filed a motion to exclude Griswold.
Plaintiff also filed a motion to preclude Defendants’ expert witness Kevin J. Valine.
Real Estate Expert Witness
Robert Stephen Griswold is a recognized expert on management of all types of residential real estate. He has actively managed over 70,000 residential units and several million square feet of commercial, industrial, self-storage, and retail properties nationally in the last 40+ years.
He is a 3-time graduate of the distinguished Marshall School of Business at the University of Southern California with a BS (’81), MBA (’86), and MSBA (2nd Masters) (’88) in real estate and related disciplines.
The Court found that the standard of care is not relevant to the claims at issue. Additionally, the expert did not appear to have expertise in disability accommodations consistent with the claims herein, nor did it appear that the expert reviewed the insurance policy exclusions.
As a result, the motion was granted as to Griswold’s opinions that Plaintiff’s request for an emotional support animal was denied on “legitimate grounds,” and that Defendants met the applicable standard of care in their ownership, operation, property management, and maintenance with respect to Plaintiff’s request. The motion was further granted as to Griswold’s opinion regarding undue hardship, the feasibility of a reasonable accommodation, and that Defendants acted reasonably by offering to temporarily allow Plaintiff to keep Onyx on the property while Plaintiff sought to relocate. Finally, the motion was granted as to Griswold’s opinion that allowing Plaintiff to keep Onyx on the property would have violated the insurance carrier’s exclusions.
However, the Court denied the motion as to Griswold’s opinion that the property’s insurance could have been non-renewed or canceled for allowing an animal on a breed-restriction list; that permitting Plaintiff to keep such an animal would expose Defendants to financial repercussion; and that a loss of insurance would have imposed a significant burden on the property’s residents and occupants, subject to Defendants laying a proper foundation that the applicable insurance policy excluded the animal in question.
II. Kevin Valine
The Court also found that Valine’s opinions regarding the appropriate standard of care for a reasonably prudent insurance broker were not relevant to the claims at issue.
Although Defendants argued at the hearing that Valine had opined that granting Plaintiff’s accommodation would have exposed Defendants to an “uninsured exposure to risk of catastrophic proportion,” that statement appeared within his broader analysis that “D&D met the standard of care for a reasonably prudent insurance broker.”
As a result, the Court concluded that expert testimony on this issue is unnecessary, as it would not assist the trier of fact given the irrelevance of the standard of care.
Held
The Court granted Plaintiff’s motion to preclude Defendants’ expert witness Kevin J. Valine.
The Court granted in part and denied in part Plaintiff’s motion to preclude Defendants’ expert witness Robert Griswold.
Key Takeaway
Certain expert opinions offered by Griswold and Valine were deemed inadmissible because the standard-of-care analysis had no bearing on the claims at issue.
On November 10, 2022, Kenneth and Phyllis Zerr perished in a house fire. Plaintiffs—the Zerrs’ children and Kenneth Zerr’s estate—alleged that the fire was caused by a defective dehumidifier produced by Gree.
Defendants sought to call an insurance adjuster, Steven Weitz, to testify as to the value of the home, and its contents, before and after the fire. Plaintiffs filed a motion to exclude his testimony.
Insurance Expert Witness
Steve Mark Weitz is a Licensed Independent Adjuster licensed in California with over 30 years of experience in analyzing loss claims, with a focus on residential fire losses.
Plaintiffs did not challenge Weitz’s credentials. Rather, they argued that Weitz’s opinion should be excluded because he evaluated the “actual cash value” of the home and its contents, where Missouri law requires damages to be assessed using the “fair market value” of the property before and after the fire.
The question before the Court, then, is whether Defendants have shown that that it is more likely than not that Weitz’s “replacement cost less depreciation” testimony would “help the trier of fact to determine” the property’s “fair market value.”
Missouri Approved Jury Instruction (MAI) 16.02 defines “fair market value” as “the price that the property in question would bring when offered for sale by one willing but not obliged to sell it and when bought by one willing or desirous to purchase it but who is not compelled to do so.”
It is the Defendants’ burden to show that Weitz’s testimony is more likely than not admissible under Rule 702. However, Defendants produced no statute, jury instruction, or case law suggesting that testimony about “replacement cost less depreciation” would help the jury determine “fair market value” as defined in MAI 16.02. Instead, they cited cases from distinctly different contexts, in which courts interpreted “actual cash value” as “fair market value,” not cases in which courts allowed parties to establish “fair market value” by presenting evidence of “replacement cost less depreciation,” as Defendants propose. Moreover, they made the specious claim that Weitz “employed the same standard” as MAI 16.02, citing two parts of his report that relate to his valuation of the contents of the Zerrs’ home, not the structure.
Held
The Court granted Plaintiffs’ motion to exclude the testimony of Steven Weitz.
Key Takeaway
Defendants have failed to establish the admissibility of Weitz’s testimony under Rule 702 by a preponderance of the evidence because mischaracterization of the expert’s report is not a strong foundation for an argument.
Please refer to the blog previously published about this case:
This case arises out of an insurance claim (the “Claim”) Plaintiff Mike Nguyen submitted to Allstate seeking coverage under his homeowners insurance policy (the “Policy”) for damages to the roof and certain exterior components of his dwelling (the “Property”) that he said were caused by a hail storm that occurred on May 1, 2022 (the “Storm”). However, Allstate inspected the Property and alleged that the damages to the steel roof were not covered pursuant to the Metal Roof Surfaces Cosmetic Damage Exclusion Endorsement to the Policy (the “Cosmetic Damage Endorsement”).
Allstate sought to exclude the testimony of the Plaintiff’s retained experts, Chris Rhynehart and Brandon Allen.
Roofing Expert Witness
Chris Rhynehart has served as the owner and operator of Rhynehart Roofing and Construction for over thirty-five years.
Brandon Benjamin Allen, AIC is a licensed adjuster in Texas and Louisiana with almost twenty years of experience adjusting claims. He also holds credentials including an Associate in Claims, and he is a HAAG Certified Roof Inspector, which means he received specialized training to assess roof damage.
Allstate argued that Rhynehart’s opinions are irrelevant because he made no attempt to connect the damage to the May 1 storm or any storm that occurred during the Policy period of February 1, 2022 to February 1, 2023.
Rhynehart’s report said only that the Plaintiff’s property “shows clear signs of a previous severe hail storm,” with multiple areas “indicating significant impact damage.” He made no attempt to connect that damage to the May 1 storm, or to date the damage at all. His report included a weather report showing that a hail storm occurred near the Plaintiff’s property on May 1, 2022, but the same report lists eleven other hail storms that impacted the Plaintiff’s property in the years before the May 1 storm. Rhynehart also failed to consider any possible alternative causes of the damage. Nor did he present any information about the condition of the Plaintiff’s roof before the storm.
The Plaintiff conceded that Rhynehart’s opinions failed to connect the roof damage to the May 1 storm.
The Court found that Rhynehart’s expert opinions as to causation are not relevant because they failed to speak to whether the May 1 storm caused the damage that resulted in a leak in the Plaintiff’s roof. It is the Plaintiff’s burden to establish this.
However, Allstate did not contest Rhynehart’s competence to testify about the overall “condition of the property, the presence of wind and hail damage, the extent of the damage, and to provide an unbiased estimate” as to the cost of repair.
B. Brandon Allen
Plaintiff designated Allen as a “testifying expert to contradict or rebut the evidence, opinions, analysis, and expert designations” of Allstate’s retained expert witnesses.
Allen’s expert report—much like Rhynehart’s report—simply offered a view of the evidence that favored the Plaintiff. The Court found that Allen’s report did not even mention Allstate’s experts, much less attempt to contradict specific findings they made in their reports.
Allen’s report did not attempt to specifically rebut the findings of Allstate’s experts. But even if it had, his report went far beyond that and offered its own “separate and distinct analysis.”
Held
The Court granted in part and denied in part Allstate’s motion to exclude the testimony of Plaintiff’s retained expert witnesses Chris Rhynehart and Brandon Allen.
Key Takeaway
A rebuttal expert’s report must relate to the specific findings advanced by the opposing expert, not simply offer a different view of the case.
Case Details:
Case Caption:
Nguyen V. Allstate Vehicle And Property Insurance Company
This case centers on a landslide that occurred in May 2017 in the Cincinnati neighborhood of Mount Adams. At the time of the landslide, Plaintiff Metropolitan Design & Development, LLC (“MDD”) was insured under a commercial liability policy with Defendant Frankenmuth Mutual Insurance Company (“Frankenmuth”). MDD performed construction work in the vicinity of the landslide prior to the event, and several lawsuits alleged that MDD’s negligence caused the landslide, resulting in damage to nearby properties.
MDD immediately notified Frankenmuth of the lawsuits and provided documentation, but Frankenmuth declined to defend MDD in these actions.
Plaintiffs alleged that, in failing to defend MDD in the prior landslide lawsuits, Frankenmuth breached the terms and conditions of its insurance policy with MDD.
Charles Murray Miller is a former insurance claims adjuster and manager, as well as a lawyer practicing insurance law. He has held several insurance claims positions, including senior adjuster, branch office general adjuster, and claims manager.
Rebekah Anne Smith is a Certified Public Accountant who specializes in forensic accounting. She has over 29 years of relevant business and analytical experience.
Frankenmuth contended that Miller’s opinions and analysis offered legal conclusions based on the National Association of Insurance Commissioners’ Model Unfair Claims Settlement Practices Act and Regulations, which are encoded in Ohio law and enforced through Ohio regulations.
Frankenmuth also argued that the Court should exclude Miller’s testimony due to their unreliability, as “Miller’s opinions merely amount to criticisms of Frankenmuth’s claims handling processes without grappling with the reality of this case and the facts in the record.”
Miller’s opinions are based on general insurance standards that mirror relevant statutes and regulations. Thus, while “Miller’s opinions may verge on legal conclusions,” this “does not mean his entire testimony should be excluded” — instead, Frankenmuth “can object at trial to any questions that it believes would invite an improper response.”
Frankenmuth’s argument here centers around its contention that Miller ignored countervailing facts, and because Frankenmuth does not identify omissions significant enough to render Miller’s opinions unreliable, the Court declined to exclude Miller’s testimony on this basis.
Rebekah Smith
Frankenmuth contended that Smith’s opinions (1) consisted of “simple math,” (2) were calculated using information about MDD’s financials provided by Plaintiff Matthew Fenik, one of MDD’s principals, that Smith failed to independently verify, (3) omitted consideration of MDD’s working capital during the relevant period, and (4) violated the standards of objectivity that Smith herself outlined in professional publications.
As to Frankenmuth’s characterization of Smith’s opinions as “simple math,” the Court disagreed. Because this type of financial analysis is grounded in Smith’s specialized knowledge as a forensic accountant, it qualifies as expert testimony.
The Court is unpersuaded by Frankenmuth’s argument contesting the reliability of Smith’s testimony. Frankenmuth asserted that Smith’s opinions are speculative because she should have considered more than just MDD’s financial representations, but Frankenmuth pointed to no other sources of information that she could have examined. This argument does not suffice to exclude Smith’s testimony. As it seems Smith did in fact consider MDD’s working capital during the relevant period, the Court is also unwilling to exclude her report and testimony on this basis.
Frankenmuth also pointed out that Smith considered damages to non-insured persons in conducting her analysis, and it argued that such considerations are “plainly irrelevant.” Under Ohio law, only insured persons can recover for bad-faith denial of insurance coverage. Therefore, because Smith’s opinions as to damages to non-insureds would not help the trier of fact to determine any damages amount in this case, which would exclude damages to non-insureds, Smith’s opinions about damages suffered by non-insured persons and entities are irrelevant.
Held
The Court denied the Defendant’s motion to exclude the testimony of Charles Miller.
The Court granted in part and denied in part the Defendant’s motion to exclude the testimony of Rebekah A. Smith.
Key Takeaway
Expert testimony must help the trier of fact to understand the evidence or to determine a fact in issue. Expert testimony which does not relate to any issue in the case is not relevant and, ergo, non-helpful.
Case Details:
Case Caption:
Metropolitan Design & Development, LLC V. Frankenmuth Mutual Insurance Company
Plaintiff Lorenzo Garcia alleged that he was lawfully stopped at a red light when the vehicle Kenneth Childress was driving collided with the vehicle Pasty Ration was driving, causing Ms. Ration’s vehicle to strike the rear of Garcias vehicle. Garcia further alleged that as a result of the accident he sustained permanent, disabling injuries requiring extensive medical treatment.
At the time of the collision, Garcia held a valid automobile insurance policy with State Farm, which included uninsured/underinsured motorist (“UM/UIM”) coverage with policy limits of $600,000. He alleged that the other drivers’ auto insurance coverage was insufficient to compensate him for his injuries. Garcia further alleged that he timely submitted a claim for UM/UIM benefits to State Farm but that State Farm failed to pay him the full benefits he is owed under the policy.
Garcia disclosed Elliott Flood as an expert who may testify on his behalf at trial and produced Flood’s report.
Defendants asked the Court to “confine Flood’s testimony to industry standards and customs relevant to this matter” and to prohibit him from “testifying to any legal conclusions” and from “applying the law to the facts as part of his testimony at trial.”
Insurance Expert Witness
Elliott St. John Flood has 35 years of professional experience in the insurance industry, including in positions of significant responsibility, as well as over a decade of professional experience as an attorney specializing in insurance law.
Defendants argued that the Court should exclude portions of Flood’s proffered opinions because they infringe on the Court’s duty to define the law of the case and the jury’s duty to apply that law to the facts and are thus unhelpful.
Plaintiff is correct that expert testimony is not objectionable merely because it refers to legal concepts and Flood’s opinions are not excludable on that basis. For example, Flood’s opinions are not excludable merely because they address the legal concepts of “damages” and “causation.” Nevertheless, Plaintiff failed to refute Defendants’ charge that some of Flood’s opinions impermissibly state legal conclusions that he has drawn by applying the law to the facts of the case. And based on his report, it certainly appeared that Flood proposed to opine about the propriety of Defendants’ conduct in relation not only to insurance industry customs, practices, and standards, but also to Defendants’ legal duties as he defines them.
Flood proposed to opine that “insurers handling first-party claims owe a heightened standard of fairness and transparency” and have a “fiduciary-like responsibility when handling UM claims for their policyholders.” These opinions appeared to concern Defendants’ legal duties rather than industry standards. But whether a legal duty exists is a question for the Court to decide, and it would not be helpful to the jury for Flood to opine on this topic.
In addition, Flood frequently appeared to draw legal conclusions by directly or indirectly characterizing Defendants’ conduct as unreasonable or in bad faith, where unreasonableness and bad faith are elements of claims asserted in Plaintiff’s Complaint.
The Court excluded Flood’s testimony because such testimony is not helpful, and it is also more unfairly prejudicial than probative.
Held
The Court granted Defendants’ motion to exclude certain opinions of Plaintiff’s expert Elliott Flood.
Key Takeaway
Flood did more than opine about insurance industry customs, practices, and standards and whether Defendants’ handling of Plaintiff’s claim conformed to such norms. Rather, Flood appeared to define the scope of Defendants’ legal duties, including the duties to act reasonably and in good faith, and to apply the law regarding these duties to the facts of the case, impinging on the Court’s and the jury’s performance of these functions.
Plaintiffs are the estate and heirs of Timothy Hunt, who was killed in a grain engulfment accident. Defendant is the insurance company who insured the farm (Butts Farms) where the accident occurred. Defendant denied coverage for the accident under the policy. Butts Farms assigned its claims to Plaintiffs as part of an arbitration and non-execution agreement. Plaintiffs secured an arbitration award of approximately $12 million against Butts Farms and seeks to collect that from Defendant.
Plaintiffs designated Ronald Clifton as an expert on Defendant’s claims handling practices. Clifton’s report outlined the facts of the case, and in doing so concluded that the grain vacuum Hunt was using was attached to the trailer. He opined on the liability of Butts Farms, coverage of the loss under the policy, claims handling deficiencies by Defendant, Defendant’s conformance with its “Claims Best Practices” and the Kansas Unfair Claim Settlement Practices Act, and Defendant’s breach of fiduciary duty toward Butts Farms.
The Defendant filed a motion to exclude Plaintiffs’ expert Clifton.
Insurance Expert Witness
Ronald Clifton has over 37 years of claim handling experience. He has also served as an insurance claims litigation consultant for over 21 years.
Clifton’s opinion is “that a reasonable insurer would have settled this claim and paid the full available policy limits,” that Defendant acted negligently by failing to settle the claim for policy limits, and that Defendant failed to act in good faith in handling the claim.
The Court has reviewed Clifton’s report. It shared many of the concerns raised by Defendant. Clifton’s report includes an extensive discussion of policy provisions and a conclusion that the accident is covered under the policy.
Analysis
To begin with, Clifton concluded without elaboration that the grain vacuum was attached to the grain trailer. But that is a factual question the jury will be asked to decide—a fact question that does not require expert testimony. If a jury finds the grain vacuum was attached to the trailer (which can include being tied), coverage exists under the policy. It is not Clifton’s role to tell the jury how they should decide by simply declaring there is coverage based on the grain vacuum being attached.
To the Court’s knowledge, there are no disputes about any other provisions in the policy. Even to the extent there was an issue about the policy, it is not Clifton’s role to opine on what the policy says or does not say because that is a legal issue for the Court to decide.
Clifton’s report also repeated opinions of others, including a doctor’s opinion about Hunt’s cause of death. Clifton is not qualified to opine on that issue, nor is it proper for him to simply repeat what others have said. To the Court’s knowledge, Hunt’s cause of death is not an open issue in this case.
There are other opinions that do not seem to “fit” the case. For example, Clifton’s report included a series of opinions that Butts Farms had a duty to exercise reasonable care toward Hunt, and it breached that duty. To the Court’s knowledge, Butts Farms’ obligations toward Hunt are not an issue the jury will be asked to decide. Additionally, Clifton opined that Defendant breached its fiduciary duty to Butts Farms. This opinion is conclusory and veers into legal opinion.
Held
The Court granted in part and denied without prejudice in part the Defendant’s motion to exclude the testimony of Ronald Clifton.
Key Takeaway
The Court found that many of Clifton’s opinions are not relevant, would not aid the jury, or touch on legal matters or on matters beyond his expertise. However, Clifton did have some expertise that qualifies him to offer opinions about insurance industry standards and practices. What those opinions are and the basis for them are not clear from the report, however. Accordingly, the Court will voir dire Clifton before the trial.
Case Details:
Case Caption:
Hodges V. Farm Bureau Property & Casualty Insurance Company
This action arises from an insurance claim related to a vehicle fire that occurred on May 31, 2024, in Arkansas while Plaintiff Anthony Nicholas was driving from Tennessee to Oklahoma. Plaintiff submitted a claim to Defendant Progressive Direct Insurance Company that same day. Plaintiff alleged that Defendant failed to handle the claim in good faith and improperly subjected him to a fraud investigation.
Also, Plaintiff retained Deborah C. Rankin as an expert related to Progressive’s handling of Plaintiff’s comprehensive coverage claim.
Rankin’s expert report outlined her opinions on standards she asserted formed the basis for properly handling insurance claims and Progressive’s failure to follow those standards.
Defendant filed a motion to exclude the testimony of Plaintiff’s expert Rankin.
Insurance Expert Witness
Deborah C. Rankin worked as a licensed insurance adjuster for thirty-three years, retiring from State Farm Insurance in 2016.
I. Rankin is not qualified to provide expert testimony in this case
While Rankin stated that she handled hundreds of property claims earlier in her career, Defendant noted that the last such claim she handled was in 1995.
The Court found that Rankin is likely not qualified to offer expert testimony in this case. Rankin has been admitted as an expert in another case in this district, though that case dealt with an action for bad faith breach of a UM/UIM motorist policy. This case doesn’t involve a UM/UIM claim, but rather a comprehensive property claim.
The Court is unconvinced that Plaintiff has met his burden to show that Rankin’s experience is sufficiently timely to qualify her as an expert in testifying to the claims handling process for comprehensive claims such as this. In reviewing the cases in which Rankin represents she’s provided expert testimony, it appears none of these cases were related to comprehensive claims like the one in this case. None of this is to say that Rankin might not be qualified to testify as an expert in a UM/UIM case—indeed, she has been—but that isn’t this case.
II. Rankin’s opinions are not reliable
Even if the Court had found Rankin qualified to opine on the issues in this case, the Court did not find Rankin’s methodology and reasoning reliable, for the simple reason that it was not clear to the Court how Rankin arrived at her reported conclusions. Rankin’s report failed to cite any specific industry standards to which insurers were to be held. Rankin vaguely stated that “insurance standards are based on multiple sources that work together to result in best practices.” She went on to say that those standards were based on state law, state case law, industry training, and best practices, but other than a cursory cite to the Unfair Claims Settlement Practices Act, Rankin did not further develop the foundation for the industry standards with which she contrasted Progressive’s actions.
Further, the Court was uncomfortable admitting Rankin as an expert because, as the Defendant noted in her report, she misstated Oklahoma law in arguing that insurance adjusters were required to be licensed in Oklahoma and meet venue-specific training requirements.
III. Rankin’s testimony will not assist the triers of fact to determine the facts in issue
Finally, Plaintiff has failed to demonstrate how Rankin’s testimony will help the trier of fact to understand the evidence or to determine a fact in issue. The question in this case is whether Progressive “unreasonably, and in bad faith,” withheld payment of Plaintiff’s claim. Bad faith is a common law tort that requires the judgment of “reasonable, prudent people.”
The jury will be called upon to consider the facts of the case and apply its own conceptions of reasonableness to them in rendering its verdict. The jury is not required to determine the reasonableness of Progressive’s actions with respect to any industry standards. That isn’t to say that failure to comport with industry standards can never be probative of bad faith, but when those “industry standards” are based on amorphous, vague, and sometimes incorrect references to supposedly governing laws, the testimony is more likely to confuse the jury than aid it.
Held
The Court granted Defendant’s motion to exclude the testimony of Plaintiff’s expert Deborah Rankin.
Key Takeaway
Plaintiff has failed to show that Rankin’s opinions reflect a reliable application of principles and methods to the facts of the case due to her inability to properly interpret Oklahoma law related to adjuster licensing.
