This legal malpractice action arises from Defendants’ representation of Plaintiffs in an eminent domain proceeding involving the Westside Connector project. Defendants retained Kannon Conway, Esq., an experienced eminent domain attorney, to opine on the applicable standard of care and the viability of a challenge to the taking. Conway concluded that any such challenge would have been futile.
Kannon C. Conway, Esq. routinely advises and represents property owners whose property is being taken by governmental entities under the power of eminent domain.
Conway is also the current Tennessee-affiliate member of the Owners’ Counsel of America, a nationwide network of leading eminent domain lawyers dedicated to representing property owners.
Conway opined that: the Defendants complied with the duty they owed to the Plaintiffs as their clients in an attorney-client relationship; the Defendants acted within the scope of their engagement by the Races; the Defendants provided sound legal advice and adequately communicated this advice; they took appropriate steps to protect the Races’ financial interests; they provided competent representation in the Underlying Case; and the Races did not suffer harm as the result of any alleged breach of duty by the Defendants.
Analysis
The Court found, as an initial matter, that the Plaintiffs’ motion to exclude is not in compliance with Local Rule 7.01(a)(1), which requires a certification that counsel has conferred with counsel for the opposing party before filing the motion and a statement of whether the relief requested is opposed. On that basis alone, the motion is subject to denial.
Further, the Court found, based on its review of the motion to exclude and the documents filed by both parties, that neither exclusion of the Defendants’ expert’s report nor any other sanction is warranted under Rule 37(a). The Plaintiffs simply have not identified any discovery violation. At most, they contended that the Defendants did not supply all available discovery materials to their expert, but they do not contend that the Defendants withheld discovery from them (though it appears that the Plaintiffs may have withheld documents from the defendants).
As for exclusion under Rule 702, the Court, in performing its gatekeeping function under that rule, found that Conway is qualified to testify on the subject matter of his report and that his proffered opinions are both reliable and relevant.
Regardless, Conway’s report and deposition testimony made clear what documents he did rely on, and the purported factual discrepancies identified by the Plaintiffs are not material, were adequately explained and resolved during Conway’s deposition, or are not factual discrepancies at all. His opinions clearly “rest upon a reliable foundation, as opposed to, say, unsupported speculation,” and there is no mismatch between those opinions and the facts of this case. Supplementation is not warranted at this juncture, and the Plaintiffs have failed to show that the defendants were required to include with their expert disclosures any documents not already disclosed.
Held
The Court denied the Plaintiffs’ motion to exclude the testimony of Kannon Conway.
Key Takeaway
An expert cannot be expected to review documents that were not produced in discovery, nor is he necessarily required to review every document produced in the case.
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.
ResinTech commenced this action against AIG and Odell arising from AIG’s denial of coverage for environmental liabilities asserted against ResinTech by the Camden County Municipal Utilities Authority (“CCMUA”) and the New Jersey Department of Environmental Protection (“NJDEP”).
ResinTech asserted claims against AIG for breach of contract and declaratory judgment and, in the alternative, asserted claims against Odell arising from Odell’s alleged failure to procure appropriate insurance coverage and advise ResinTech concerning its pollution-liability risks.
Odell sought to exclude the testimony of Plaintiff’s insurance-industry expert, Howard Tollin.
Law And Legal Expert Witness
Howard M. Tollin is an attorney, environmental risk consultant, and licensed property and casualty broker. Over the past 30 years, he has facilitated thousands of real estate, corporate M&A transactions and litigation and claims settlements.
Tollin is qualified to offer opinions concerning environmental insurance, pollution-liability coverage, insurance-broker practices, and industry customs. He has decades of experience as both an attorney and insurance broker specializing in environmental and pollution coverage. His report and deposition testimony demonstrate substantial experience placing pollution-liability policies, negotiating policy language, advising policyholders regarding environmental risks, and participating in the environmental-insurance marketplace. The Court is satisfied that his specialized knowledge will assist the trier of fact.
Odell’s principal criticisms concerned the basis for Tollin’s opinions rather than his qualifications. Odell argued that Tollin relied primarily on his professional experience rather than identified treatises, regulations, or formal industry standards. That argument is unavailing. Tollin reviewed the record and applied his experience to the facts of this case. To the extent Odell disputes his assumptions, methodology, or conclusions, those objections go to the weight of the testimony and may be explored through cross-examination and the presentation of contrary evidence.
The Court likewise rejected Odell’s contention that Tollin’s opinions are impermissibly speculative. Odell’s challenges largely concerned the factual premises underlying Tollin’s opinions and the conclusions he drew from the record.
The Court agreed, however, that Tollin may not offer legal conclusions or instruct the jury on the governing law. Accordingly, Tollin may testify regarding insurance-industry customs and practices, the availability and characteristics of environmental insurance products, the role and responsibilities commonly undertaken by brokers and risk-management advisors, and whether the conduct alleged in this case was consistent with those customs and practices. He may not opine that Odell was negligent, breached a legal duty, violated New Jersey law, or otherwise offered legal conclusions reserved for the Court and jury.
Held
The Court denied Odell’s motion to exclude the testimony of Howard Tollin subject to certain limitations.
Key Takeaway
Rule 702 expressly permits expert testimony grounded in specialized experience, and the absence of a particular treatise or published methodology does not render such testimony inadmissible.
Case Details:
Case Caption:
ResinTech, Inc. V. AIG Specialty Insurance Company
Docket Number:
1:21cv19843
Court Name:
United States District Court for the District of New Jersey
Plaintiffs are alleged owners of real property containing natural gas who have no leases with EQT covering their interests. Claiming that EQT has produced gas from Plaintiffs’ properties but not paid them for it, Plaintiffs brought this putative class action seeking to recover the alleged non-payment on behalf of all allegedly unpaid tenants-in-common who presently own property with a co-tenant who has a lease with EQT. Their complaint sought damages for the alleged non-payment on the non-contractual causes of action one might expect from those who are not parties to leases—quantum meruit, conversion, and unjust enrichment—and tacks on a purported claim under Pennsylvania’s Guaranteed Minimum Royalty Act (“GMRA”).
EQT filed motions to exclude and strike the opinions of two of Plaintiffs’ experts, Cara Davis and Christopher L. Haney.
Law And Legal Expert Witness
Cara C. Davis has had 15 years of experience, devoted entirely to the oil and gas title industry and has personally prepared and reviewed hundreds of title abstracts and rendered numerous certified title opinions based on both [her] own work and that of others.
Additionally, Davis is licensed to practice law in Pennsylvania and Ohio and her experience includes evaluating title defects, identifying and assisting with unknown heirs, and tracing mineral ownership, all of which are directly relevant to the identification and location of unleased co-tenants.
Christopher L. Haney is a certified public accountant (“CPA”), a certified fraud examiner (“CFE”) and certified in healthcare compliance (“CHC”).
Haney is regularly retained as an expert and has testified in a variety of venues on topics including financial damages, data analysis, statistical sampling, and regulatory compliance.
EQT asserted that Davis did not adequately review and tailor [her opinions] to the record facts of the case, her opinions are not grounded in the facts, her opinions are unhelpful to the trier of fact on class certification and her opinions were offered in relation to a prior class certification definition that Plaintiffs have now abandoned.
Analysis
Based on Davis’ experience in the industry, along with the additional expert reports in the record, the Court found that Davis’ opinion is reliable. The methodology Davis described, both in her report and throughout her testimony, is a practice which she has employed throughout her career and is “generally accepted” in the industry. Davis also relied on several relevant sources in preparing her report.
There is a clear connection between Davis’ opinion and the facts at issue. Davis formed her opinion based on the facts provided in the record. She used testimony that led her to believe that EQT employs “standard title practices” and applied relevant data she obtained from excel sheets. She determined, in her “professional experience,” that the identities of the unleased co-tenants and their locations are ascertainable through “diligent title search,” which is an accepted method used throughout the industry.
EQT additionally challenged Davis’ opinions that EQT is obligated “to identify and locate unleased co-tenants in accordance with the requirements of the Pennsylvania Minimum Royalty Act, 58 P.S. § 33.3.” The Court agreed with EQT that Davis’ opinions, particularly regarding obligations stemming from § 33.3, shall be excluded.
Davis states in her deposition that she only “vaguely” remembers when the language of the 58 P.S. § 33.3 came out, she does not remember why the statute was passed, she has not read the legislative history, and she did not read the legislative intent behind the statute. As a result, Davis’ testimony that § 33.3 “imposes an obligation on EQT to identify unleased co-tenants” is inadmissible.
Christopher Haney
EQT filed a motion to exclude Haney’s expert opinions, asserting “they are unreliable, irrelevant, and misleading.”
Plaintiffs retained Haney, requesting that he (1) “organize and compile EQT’s data into a structured data set that can be efficiently queried based on select criteria,” (2) use that structured data set to evaluate whether select identifying information for Plaintiffs and other unleased owners (i.e., potential class members for this litigation) can be identified (3) “evaluate acceptable damages methodologies for this matter,” (4) “evaluate the methodology employed by EQT for calculating natural gas royalty payments,” and (5) “determine whether the data available in documents produced by EQT would enable the calculation of natural gas payments or royalties using EQT’s methodology.”
Analysis
Haney explained his process and conclusions throughout his report. He also identified an itemized list of sources and information that he relied upon in support of his methodology. Though Haney testified “that he was unable ‘to incorporate all of the data into the database’ from EQT’s records,” Haney was able to compile most of the data apart from the tax parcel identification numbers that were contained in EQT’s Setup Files.
Haney emphasized that he used “widely accepted statistical procedures and equations” when designing and executing his Statistically Valid Random Sampling method.
The Court found that Haney had good grounds to rely on the data and information provided by counsel when forming his opinions.
Haney used a reliable methodology. He used EQT’s established uniform method for calculating royalties owed to all owners regardless of whether they are parties to a lease.
Held
The Court granted in part and denied in part Defendant EQT’s motion to exclude the expert opinions of Cara Davis.
The Court denied Defendant EQT’s motion to exclude the expert opinions of Christopher Haney.
Key Takeaway
When an expert relies solely or primarily on experience, he must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.
Case Details:
Case Caption:
Ross V. EQT Corporation
Docket Number:
2:21cv1585
Court Name:
United States District Court, Pennsylvania Western
This matter arises from damage to Plaintiffs Jacob and Suzanne Kuehn’s home caused by a water loss in December 2023.
The Kuehns sued Safeco Insurance Company of America (“Safeco”) alleging breach of contract, violation of the Consumer Protection Act (“CPA”), bad faith, and violation of the Insurance Fair Conduct Act (“IFCA”).
In advance of trial, Plaintiffs identified construction expert David Zaborowski while Defendant disclosed two rebuttal expert witnesses: construction rebuttal witness Nathan George and claims-handling rebuttal witness Joseph Hampton.
Plaintiffs filed a motion to exclude the testimony of both George and Hampton while Defendant sought to exclude the testimony of Zaborowski.
Construction Expert Witnesses
David Zaborowski has 23 years of experience in the insurance restoration industry as a general contractor. He specializes in property insurance estimating and appraisal work.
Nathan T. George is an active contractor with 25 years of continuous hands-on experience gained through both his carpentry work in the field and his involvement in running a successful restoration construction company.
Joseph D. Hampton is a retired attorney with 40 years of experience in insurance law, representing both insurers and insureds and provides expert testimony on insurance law, including contractual and extracontractual liability and claim handling.
(1) Hampton’s Testimony About the Remodeling Project
Plaintiffs argued that Hampton’s assertions that their remodeling project would have occurred even absent the December 18, 2023, water damage are not based on sufficient facts and rely on speculation.
Defendant and Hampton pointed to a series of Plaintiffs’ email correspondence to support the assertion that the remodel was planned before the water damages, but all of the referenced communications occurred after the date of water damage. The Court agreed with Plaintiffs that communications with potential vendors starting in 2024 (ranging from approximately one to over eight months after the loss date) are not a basis to opine that Plaintiffs intended to remodel their kitchen in 2023.
(2) Hampton’s Testimony About the Cabinets
Plaintiffs argued that Hampton’s testimony that Plaintiff Jacob Kuehn “did an honorable thing” by removing cabinet costs and must have concluded the policy did not cover them, must be excluded because it is unsupported speculation.
Defendant did not assert that Hampton offered rebuttal when he opined that Plaintiff Jacob Kuehn’s actions were “honorable,” and that he must have concluded the cabinets were not covered by the insurance policy. Moreover, Plaintiffs are correct that Hampton conceded that he does not know why Plaintiff Jacob Kuehn removed the cabinet estimate. Therefore, the Court agreed that Hampton is offering speculative testimony, which must be excluded.
(3) Hampton’s Testimony About Xactimate Pricing
Plaintiffs asserted that Hampton’s testimony about Plaintiffs’ use of Xactimate pricing from September 2025 is unreliable because Hampton “admitted that he does not have the qualifications to go ‘line by line through an Xactimate estimate, deconstruct it, analyze it, and come up with his own opinions,’” and that “such work falls ‘within someone else’s expertise and purview.’”
However, Hampton critiqued the use of Xactimate from September 2025, because the insurance policy requires repair costs to be determined “shortly following the loss,” which, in this case, was in December 2023. The Court held that Hampton’s opinion is reliable because he bases it off the insurance policy and Zaborowski’s report. Any critique of Hampton’s inability to go line by line through the estimate goes to the weight of the evidence he presents and is for the jury to decide.
(4) Hampton’s Testimony About the Insurance Fair Conduct Act (“IFCA”) Letter
Plaintiffs argued that the Court should exclude Hampton’s testimony about the IFCA notice because it offered improper rebuttal, improper legal conclusions, and is barred by Federal Rule of Evidence 408.
First, Plaintiffs asserted that “Hampton opined that Plaintiffs’ IFCA notice letter was sent ‘simply to enable an IFCA suit.’” While Hampton will not be allowed to speculate as to Plaintiff’s motivation for sending the letter, the Court held that Hampton’s opinion on this subject constitutes proper rebuttal.
Second, the Court found that Hampton’s testimony about the IFCA is almost entirely devoid of legal conclusions, with the exception of one opinion that must be excluded. Hampton asserted that Plaintiffs were not inviting negotiation because “the sole purpose of an IFCA notice letter is to enable a later suit pursuant to the IFCA,” rather than offering an opinion that, based on his experience handling claims, letters of this nature are not used to invite negotiations.
In his rationale for his opinion that the opposing expert is wrong that Defendant did not negotiate in good faith, Hampton is essentially concluding that the law rebuts opposing testimony.
(5) The Scope of Hampton’s Testimony
Plaintiffs sought to exclude testimony from Hampton that they argued “exceeded permissible expert boundaries” because they offered opinions on the reasonableness of conduct and legal conclusions. The Court partly agreed.
(a) Reasonableness and Case Law Conclusions
Regarding coverage for the kitchen cabinets, Hampton opined, “That part of the damaged building was the lower cabinets, not the entire set. It is a reasonable claim handling practice, and permitted in Washington, to determine the extent of damage to property, and only pay for repair or replacement of the actually damaged portion where the policy language permits such allocation.”
There are two issues with the proffered opinion. First, it deems the claim-handling practice “reasonable,” which opined on the ultimate issue of the reasonableness of Defendant’s conduct and is not allowed. Second, the statement offered a legal conclusion—namely, that Washington law permits Defendants to only pay for the damaged cabinets, but not the upper, undamaged cabinets—which is also not allowed.
However, Hampton can still testify as to generally accepted claims-handling practices in relation to the cabinets.
Hampton opined that “it is not unreasonable for a field adjuster to schedule an inspection a mere five days after initial contact” and later stated that “it is common for an insured’s contractor’s estimate to lack the details necessary for a reasonable ‘apples to apples’ comparative analysis of the competing estimates.”
Hampton can testify about what the common practice is or about typical scheduling timelines, but he cannot offer an opinion as to the reasonableness of such acts.
Regarding the IFCA letter that Plaintiffs sent, Hampton’s opinions that “no reasonable person” would accept the terms in the letter, and that the letter was not an attempt to “open a reasonable settlement discussion” offer conclusory opinions on the ultimate issue as to whether Defendant acted in bad faith. As such, they are not allowed.
The remainder of Hampton’s opinions are allowed, as they are based on his experience in legal practice and handling claims.
(b) Legal Landscape in Washington
Plaintiffs argued that Hampton’s statements referring to the legal landscape in Washington should be excluded.
Although Hampton goes on to cite the Revised Code of Washington, the Washington Administrative Code, and a Washington Supreme Court case, this testimony is based on his experience handling insurance claims.
(c) Statutory Law
Similarly, Plaintiffs argued that certain assertions Hampton made should be excluded because they make legal conclusions based on “statutory law.” The Court disagreed.
Although Hampton mentioned the Revised Code of Washington, but this is in reference to the basis of Hampton’s opinion that “the sole purpose of an IFCA notice letter is to enable a later suit pursuant to the IFCA,” meaning that Plaintiffs were not “inviting a discussion to amicably resolve a dispute.”
(d) Breach of Contract
Hampton stated, “the opposing expert says that industry standards require an insurer as part of paying to replace damaged property with like kind and quality to replace undamaged property if necessary to achieve a uniform appearance when replacing damaged property, unless there is clear policy language to the contrary.”
The report goes on to rebut the opposing expert’s assertions by stating that “Here, there is policy language to the contrary, and the allocation is allowed.” Accordingly, this testimony does not offer a legal conclusion.
(e) Catchall
Finally, Plaintiffs sought to exclude all remaining testimony from Hampton. Plaintiffs base this request on the assertion that “because so much of his testimony is excluded under the rules, Hampton’s remaining opinions are unhelpful and inadmissible.”
Because the Court denied many of Plaintiffs’ requests and found that Hampton’s testimony would still be helpful, the request to exclude the remainder of Hampton’s testimony was denied.
b. Nathan George
Plaintiffs argued that George’s opinions are not grounded in sufficient facts, reflect unsupported assumptions, lack reliable application, and exceed the permissible scope of rebuttal testimony.
(a) George never visited Plaintiffs’ propertyand instead relied on photos
First, Plaintiffs argued that because George never visited Plaintiffs’ property and instead relied on photos taken after the mitigation work, his opinions are not grounded in sufficient facts or data. However, an expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed.
(b) George’s conclusions regarding damage to the subfloor are unsupported assumptions, not reliable analysis
Next, Plaintiffs argued that George’s conclusions regarding damage to the subfloor are unsupported assumptions, not reliable analysis. George made it clear that his opinion regarding mold on the floors and treatment are based off his years’ long knowledge, as well as his annual re-review, of the Environmental Protection Agency (“EPA”) Guidelines.
Additionally, Plaintiffs argued that because George did not review Defendant’s estimate and instead relied on Plaintiffs’ expert’s description, George did not reliably apply any methodology to facts. But, George offered the opinion that, despite Zaborowski’s issue with the method, Defendant’s decision to combine the sketch of the kitchen and dining room, label it all as “kitchen,” and aggregate the square footage is proper and does not change the result. This opinion is developed from his extensive experience writing estimates based off square footage for flooring. It is standard rebuttal testimony because he responds directly to an opinion that Plaintiffs’ expert provided.
(c) George’s opinion as to what would have caused damaged subfloorshould be excluded
Plaintiffs argued that George’s opinion as to what would have caused damaged subfloor, and how he evaluated whether the subfloors were damaged, should be excluded. However, Zaborowski’s opinion was that it was necessary to remove the subfloor. As part of George’s rebuttal testimony, it is only logical for him to explain why he believes it is not necessary, which includes an explanation as to why, in his professional experience, he did not believe the subfloor was damaged.
(d) George’s reliance on EPA standards for mold remediation is not rebuttal testimony
Lastly, Plaintiffs argued that George’s reliance on EPA standards for mold remediation is not rebuttal testimony. But, again, in order to explain why he disagrees with Zaborowski’s conclusion, George has to be able to explain why. And the basis for his opinion as to mold on floors is based off his years’ long knowledge, as well as his annual re-review of the EPA guidelines.
c. David Zaborowski
Defendant argued that Zaborowski’s testimony is not reliable because it is not based on sufficient facts or data. In support, Defendant points to the following: the insurance policy agreement, Plaintiff Jacob Kuehn’s repair cost range, the fact that Zaborowski gave his estimate roughly a year after the house was repaired and did not consider the actual costs paid, and the fact that he included costs that were not ultimately in the final repair cost. But Zaborowski made it clear that he is “tasked to consider what [Plaintiffs] should have been paid on the claim, not what they paid to have the repairs done.”
And a central issue in this case is whether Defendant acted reasonably and in good faith when asked to pay for the repairs to Plaintiffs’ home. Those questions must be viewed through the lens of what was reasonably owed at the time of denial.
Moreover, what Defendant omits in its brief, and does not respond to in its reply, is that Zaborowski used the Xactimate software to calculate repair costs—software that George uses “all the time,” and which Hampton states estimators “typically” use.
Zaborowski’s methodology is sound, and the Court is more concerned with that than with the correctness of his conclusion.
Given that the Court found Zaborowski’s methods reliable, any questions as to his total estimate and reasons for arriving at the final number go to the weight of his credibility. They can be tested through cross-examination and are for the jury to decide.
Rule 403 Challenge
Defendant argued that Zaborowski’s testimony is prejudicial and will confuse the jury. Defendant may disagree that some of the line items in Zaborowski’s estimate should not have been included, but Zaborowski was tasked with determining what Defendant should have paid Plaintiffs, not what they did pay them. Ultimately, this is a dispute that should be decided by the jury.
Moreover, this testimony will not mislead the jury, as Defendant will have the opportunity to point out any line items that were not in the actual repair cost, and Zaborowski will be able to explain why he believes they should have been—a concept that is not overly complicated for a jury to decipher.
Held
The Court granted in part and denied in part Plaintiffs’ motion to exclude Joseph Hampton’s and Nathan George’s testimony.
The Court denied Defendant’s motion to exclude David Zaborowski’s testimony.
Key Takeaway
Reliability requires the court to assess whether an expert’s testimony has a reliable basis in the knowledge and experience of the relevant discipline. In making its reliability determination, a court is concerned with the soundness of the methodology, not with the correctness of the expert’s conclusions.
Case Details:
Case Caption:
Kuehn V. Safeco Insurance Company Of America
Docket Number:
2:24cv1785
Court Name:
United States District Court for the Western District of Washington
Plaintiff Charm Hospitality, LLC filed this lawsuit alleging, inter alia, legal malpractice against Defendant Nohayia Javed, Esq. Specifically, Charm made various allegations, in which it contended that Javed fell below the standard of care in her representation of Charm in connection with her prosecution of an insurance claim relating to water damage sustained at a Hotel owned by Charm in Elko, Nevada. The Hotel and the business’ personal property (“BPP”) were insured by General Security and Indemnity Company of Arizona (“GSICA”), and Defendant West Town Bank & Trust (“WTB”) held a Deed of Trust and Promissory Note secured by the Hotel and the BPP, as well as a personal guaranty from Charm’s sole owner and member, Param Kaur.
West Town Bank and Javed filed a motion to strike Plaintiff’s rebuttal expert, Brian P. Worthington.
Law And Legal Expert Witness
Brian Paul Worthington is a 1991 graduate of the University of Wisconsin, and a 1995 graduate of the University of San Diego School of Law. He was a partner at Wingert, Grebing, Anello & Brubaker, and then Ryan, Mercaldo & Worthington before starting a solo practice in 2012.
WTB argued that Worthington, in his expert report, offered nothing more than improper legal conclusions about his interpretations of the insurance policy and the application of NRS 40.455.
Here, Worthington opined that WTB is not entitled to receive policy benefits under the insurance policy based on the language in the loss payable provisions endorsement because it no longer has a financial interest in the property. This is a legal conclusion because it improperly interpreted the insurance policy.
Moreover, Worthington’s opinion is devoid of any discussion on industry standards, claims-handling practice, underwriting customs, etc.
Worthington further opined that “the ‘entire’ debt was eliminated, extinguished, and forever barred from collection when the deadline in NRS 40.455(1) elapsed” and that “once the sixth-month deadline in NRS 40.455 passed with no deficiency action, Charm Hospitality’s debt to WTB was extinguished and WTB ceased to have any financial interest in the insurance proceeds.” Again, this is improper because it applies the relevant law to the facts and draws a legal conclusion regarding extinguishment of the debt.
Accordingly, the Court struck Worthington’s opinion interpreting the insurance policy and applying NRS 40.455.
Held
The Court granted WTB’s motion to strike Plaintiff’s rebuttal expert Brian Worthington.
Key Takeaway
Expert testimony cannot be used to provide legal meaning or interpret the policies as written. In other words, expert testimony which purported to interpret a statute and opine as to whether it was violated was an improper legal conclusion.
Plaintiff Charm Hospitality, LLC filed this lawsuit alleging, inter alia, legal malpractice against Defendant Nohayia Javed, Esq. Specifically, Charm made various allegations, in which it contended that Javed fell below the standard of care in her representation of Charm in connection with her prosecution of an insurance claim relating to water damage sustained at a Hotel owned by Charm in Elko, Nevada. The Hotel and the business’ personal property (“BPP”) were insured by General Security and Indemnity Company of Arizona (“GSICA”).
Javed filed a motion to strike Plaintiff’s expert, Rob Bare.
Law And Legal Expert Witness
Rob Bare worked at the State Bar of Nevada for 17 years (and as the chief attorney for 15 of those years), in which he prosecuted and tried 870 disciplinary hearings.
A graduate of the University of Pittsburgh School of Law, he also served as a judge in Department XXXII of the Nevada Eighth Judicial District Court.
Javed argued that Bare is not qualified to testify because he lacked knowledge and experience in the areas of law that are relevant to the underlying action. She contended that Bare has no experience performing client conflicts, prosecuting first-party insurance claims, or handling commercial litigation.
Bare opined that Javed (1) breached the duty of competent and diligent representation by failing to research Nevada and Illinois law prior to advising Charm that West Town Bank needed to be a co-client; (2) breached the duty of communication by failing to advise Charm that (a) Javed was not licensed to practice law in Nevada or Illinois, (b) Charm may not receive proceeds under the policy; and (c) West Town Bank could be made a co-claimant; (3) failed to provide a facially valid conflict waiver by not identifying the potential conflict regarding division of proceeds; (4) breached the standard of care by disbursing the settlement payment without Charm’s consent or a court order; and (5) charged unreasonable attorney’s fees and potentially excessive costs.
Bare’s above opinions are closely related to the rules of professional conduct and his ample experience and knowledge regarding the duties of communication, competence, and diligence, as well as client conflicts. This Court further noted that Bare presided over 15,000 civil and business cases during his tenure as a state court judge for 10 years. This, combined with his 17 years of experience with the rules of professional conduct, make it “more likely than not” that Bare’s “scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.”
C. Bare’s opinion is supported by sufficient facts or data
Javed argued that Bare’s opinion is not based on sufficient facts or data because he did not independently analyze the underlying loan documents or the insurance policy.
Bare’s opinion is based on what Javed did or did not disclose to Charm (given Charm’s version of the facts). He did not need to review the loan documents or insurance policy to form this opinion. In addition, it appeared that he did review the fee contract. Based on the scope of Bare’s opinion, the Court cannot say that his opinion was not based on sufficient facts or data merely because he did not review the loan documents or insurance policy. In sum, it is more likely than not that his above opinions were based on sufficient facts or data.
As for Javed’s argument regarding the personal guaranty, this argument is based on disputed facts. As the parties have repeated throughout this litigation, much of this case comes down to a he-said-she-said scenario. This Court will not choose between the parties’ competing version of the facts at the admissibility stage.
D. Bare’s opinion that the GSICA insurance payment was uncontested is not reliable
Javed argued that Bare’s opinions on the alleged breaches of duties owed by her to Charm are not reliable.
First, Javed argued that Bare did not explain what, if anything, would have changed about Charm’s position if she had researched Nevada or Illinois law. Second, Javed argued that she had no reason to tell Charm that she was not licensed in Nevada because Charm’s representative already knew that. In his expert report, Bare stated that lawyers have a duty to familiarize themselves with factual and legal elements of a problem and that the facts did not show that Javed familiarized herself with Nevada or Illinois law. He further stated that Javed did not communicate to Charm that she was not licensed to practice law in Nevada or Illinois.
The Court found that Bare’s opinions are based in his experience with the rules of competence, diligence, and communication governing lawyer conduct. Javed did not contest that she did not familiarize herself with Nevada or Illinois law or that she did not tell Charm she did not practice law in Nevada or Illinois; rather, Javed is arguing that she did not need to do so because it wouldn’t have changed Charm’s position or because Charm already knew.
Third, Javed argued that Bare incorrectly opined that the GSICA’s initial payment under the policy was uncontested and thus her fees were excessive. Bare identified no facts underlying his “understanding” that the insurance payment was uncontested, nor can the Court find any in his expert report.
Fourth, Javed argued that Bare incorrectly opined that she disbursed payment without Charm’s knowledge or consent. Javed is merely disputing the conclusion Bare reached, which is not a reason to strike his opinion at the admissibility stage.
E. Bare’s opinion regarding forfeiture and damages will be stricken as improper legal conclusions and opinions
Javed argued that Bare’s opinion that her fees are subject to forfeiture is an improper interpretation of the law. The Court agreed. Expert witnesses cannot opine as to legal conclusions, i.e., an opinion on an ultimate issue of law and Bare’s statement that Javed should be required to forfeit some if not all of her fees is a legal conclusion.
Held
The Court granted in part and denied in part Javed’s motion to strike the testimony of Rob Bare.
Key Takeaway
The Court has broad discretion to qualify experts. Bare’s extensive experience with the rules of professional conduct make it more likely than not that his experience and knowledge will help the trier of fact determine whether Javed violated one of those rules.
Plaintiff Amanda Howland brought employment discrimination claims against her former business and romantic partner Christian Kjaer and the company they operated, Ellevet Sciences Inc.
Defendants Ellevet Sciences Inc. and Kjaer filed motions in limine seeking to exclude the testimony of Amanda Levine, Esq., PI and Charles H. Heller, Ph.D.
Law And Legal Expert Witness
Amanda Levine, Esq., PI is a graduate of Middlebury College and of Boston College Law School. She is licensed to practice law by the Commonwealth of Massachusetts and is licensed as a Professional Investigator by the State of Maine.
Levine regularly conducts neutral and comprehensive workplace investigations involving allegations of harassment, discrimination and serious employment misconduct. She also serves as an outside and neutral investigator for higher education institutions in Title IX matters.
Charles Harris Heller, Ph.D is a licensed psychologist who specializes in the effects of intimate partner violence. He earned his Ph.D. from the University of Wisconsin-Madison in 1979. His work experience includes: working as a clinical and forensic psychologist with inmates of various correctional facilities; working as a staff forensic psychologist at Rutgers, The State University of New Jersey, Department of Biomedical and Health Services; and performing forensic and clinical duties at East Jersey State Prison (EJSP) in Rahway, New Jersey.
Plaintiff designated Amanda Levine, an attorney and a professional investigator, to testify regarding the workplace conduct that Plaintiff experienced while working at Defendant ElleVet. Defendants contended that Levine should not be permitted to testify regarding: (1) implicit bias, (2) that women are more likely to experience harassment at work, (3) that Plaintiff was the victim of implicit bias, (4) that certain of Defendant Kjaer’s actions were discriminatory, and (5) the assessment of Defendant Kjaer’s credibility.
There is evidently no dispute that Levine, as an attorney and professional investigator with experience in investigating complaints of employment discrimination, had the requisite experience to testify regarding the need to conduct discrimination investigations, as well as the adequacy and substance of such investigations.
Analysis
It should be noted that the Defendants’ concerns regarding Levine’s qualifications and specialized knowledge to testify more extensively about unconscious bias and how it might affect the Plaintiff’s claims are valid. In particular, Levine evidently lacked specialized training, experience, or research in sociology, psychology, or neuroscience that would permit her either to establish the existence of novel or contested unconscious stereotypes or biases—that is, biases not yet well established in the legal context or still scientifically disputed—or to opine on the cognitive processes that might explain such biases.
Furthermore, even if Levine had the requisite qualifications and expertise to offer additional testimony on unconscious or implicit bias, the Court questioned whether such testimony would be helpful to the jury and whether its probative value would be substantially outweighed by the risk of juror confusion or improper reliance.
Similarly, Levine’s proffered opinion that women are more likely to experience harassment at work, which was apparently informed by statistical evidence from studies she had read, presented similar and additional concerns. As noted above, Levine evidently had not conducted any of those studies, nor did she have specialized training or research experience in any of the relevant fields of research.
Likewise, Levine’s opinions that the Plaintiff was the victim of implicit bias and that some of Defendant Kjaer’s acts and words were discriminatory presented the same concern. For similar reasons, Levine’s testimony regarding Defendant Kjaer’s credibility, or the factors she considered when assessing credibility, had to be excluded because it would not have been particularly helpful to the jury and would have risked misleading the jury and interfering with the Court’s instructions regarding credibility.
B. Testimony of Charles Heller, Ph.D
Defendants asserted that Heller’s proposed testimony involving the words “domestic violence,” “intimate partner violence,” and “domestic violence assessment,” should be excluded under Federal Rules of Evidence 402 and 403 as irrelevant and unfairly prejudicial because in the mind of a layperson, the term “violence” implies physical abuse, which was not present here.
Plaintiff contended, however, that Heller should be permitted to use the term “violence” because, as an expert in the field, Heller considered the emotional abuse alleged here to be a form of domestic violence.
Heller’s view is supported by others, including the American Psychiatric Association, which defines domestic violence or intimate partner violence as not only physical force, sexual acts without consent, and stalking, but also “psychological aggression,” meaning “verbal and non-verbal behaviors intended to harm emotionally or exert control.”
While Heller’s possible reference to domestic violence and related terms generates concerns of unfair prejudice under Rule 403, at this stage, the Court cannot determine that, in all instances, the prejudice to Defendant Kjaer from the use of such terms substantially outweighs the probative value. Because the Court cannot assess all potential uses of the term outside the context of the trial, the Court defers ruling on the issue and will decide the issue at trial.
Defendants also argued that Heller should not be permitted to opine as to the way Plaintiff felt as a result of Defendants’ conduct and whether her beliefs were reasonable, including whether Plaintiff reasonably believed that she was in imminent danger. When diagnosing a condition, a treatment provider often accepts the client’s representations as accurate in the absence of any objective evidence to the contrary. As to Heller’s assessment of Plaintiff’s condition, therefore, the Court discerns no basis for exclusion.
Held
The Court granted in part the motion to exclude the testimony of Amanda Levine.
The Court granted in part, denied in part, and deferred in part the motion to exclude the testimony of Charles Heller.
Key Takeaway
The witness’ familiarity with certain statistics or studies from having read them in connection with discrimination investigations is not enough.
Even if Levine had sufficient experience to opine based on the cases she has personally investigated, the opinion would have little, if any, relevance to the individualized assessment the jury must undertake. Such an opinion resembles a propensity argument that courts generally prohibit (i.e., because women are more likely to experience discrimination at work, Plaintiff is more likely to have experienced discrimination in this case).
Plaintiff Navigators Specialty Insurance Company sued SVO Building One, LLC for reimbursement of $5.5 million (before accrued interest) paid in defense of claims that were not even potentially covered under the applicable insurance policy.
SVO filed a Daubert motion to exclude the testimony of Navigators’ expert witness André E. Jardini.
Law And Legal Expert Witness
André Emilio Jardini specializes in complex litigation, and his experience in this area is wide-ranging and diverse, including trial work in insurance bad faith and coverage cases, employment and wrongful termination cases, intellectual property, business torts, and real estate litigation.
In his career, Jardini has been the principal trial attorney in more than 50 lawsuits tried to jury verdict, each with exposure in the six-to-eight figure range. He also has been involved in environmental litigation, federal and multidistrict litigation, products litigation, and toxic tort litigation.
Navigators proffered Jardini as an expert to opine on the proper reimbursement allocation for costs paid by Navigators in the Underlying Action.
SVO contended that the Court should exclude Jardini because his report is unreliable and irrelevant, as Jardini “ignored the applicable standard for determining whether attorneys’ fees and expenses may be reimbursed to an insurer set forth by the California Supreme Court.”
The Court agreed that Jardini is an improper expert under Rule 702 because his analysis incorrectly applied the operative legal standard and was thus irrelevant.
Jardini’s report explained that he “identified services that were possibly partially related to a defamation claim. In making this analysis, he had in mind the overwhelming import in the case of the various trade secret claims as opposed to the defamation claim as shown by SVO.”
But the standard is not simply whether attorney time is more likely than not related to defamation and it does not take into consideration the “overwhelming import” of a claim. Rather, the proper question is whether attorney time more likely than not “can be allocated solely to the claims that are not even potentially covered.”
Jardini’s application of a standard of “overwhelming import” to his assessment of costs attributable to the covered claims plainly departed from the established standards. Thus, the Court found that Jardini’s opinion is not only unhelpful, it is irrelevant as it does not have “a valid connection to the pertinent inquiry.”
Held
The Court granted SVO’s motion to exclude the testimony of André Jardini.
Key Takeaway
Expert testimony which does not relate to any issue in the case is not relevant and, ergo, non-helpful. Nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.
Case Details:
Case Caption:
Navigators Specialty Insurance Company V. SVO Building One, LLC
These two consolidated cases stem from a train derailment involving a National Railroad Passenger Corporation (“Amtrak”) train that occurred on June 27, 2022, on BNSF’s track near Mendon, Missouri.
BNSF filed a motion to exclude the opinions of Defendants’ disclosed experts, Allen Rostron and Jasmine Abdel-khalik, both of whom are law school professors. BNSF argued that the opinions of the two professors should be excluded as improper legal conclusions.
Law And Legal Expert Witnesses
Allen Rostron received a J.D. degree from Yale Law School in 1994. He served as a law clerk for Judge T. S. Ellis III in the U.S. District Court for the Eastern District of Virginia from 1994 to 1995. He also practiced law at the Cravath, Swaine & Moore law firm in New York City from 1995 to 1999, and at the Brady Center to Prevent Gun Violence in Washington, DC from 1999 to 2003. Rostron has been a law professor at UMKC since 2003. The courses that he teaches include Constitutional Law and Torts.
Jasmine C. Abdel-khalik is a full Professor of Law at the University of Missouri – Kansas City (UMKC) School of Law. She received her B.A. degree in history and sociology from Cornell University in 1997 and her J.D. degree from the University of Michigan in 2000. She worked at Baker & McKenzie, in the Chicago office, for three and a half years and then worked at Freeborn and Peters, now Smith Gambrell Russell, for nearly one and a half years.
Allen Rostron was supposed to offer an opinion “on whether Amtrak is a governmental entity, for constitutional purposes, when it sells tickets to passengers.”
In his report, Rostron concluded that “it is his opinion, based on a reasonable degree of certainty as a constitutional scholar, that Amtrak is engaged in government action, for constitutional purposes, when it conducts its activities, and those activities would include selling tickets to train passengers.”
Rostron reached his conclusion by considering the Rail Passenger Service Act of 1970 and other general characteristics of Amtrak, and by examining and applying case law from the United States Supreme Court to the facts and circumstances of these two consolidated cases.
Abdelkhalik was supposed to offer an opinion as to “whether the facts as to the structure of the terms, complexity of the language, punctuation as well as the factual manner in which the Amtrak’s Arbitration Agreement and its delegation clause were made available to the passengers, if at all, speaks to the validity and scope of those alleged agreements.” Abdel-khalik stated in her report: “I have examined Amtrak’s Arbitration Agreement and delegation clause and, in my opinion, have identified issues with contract interpretation, enforceability, and formation.”
Like Rostron, Abdel-khalik based her opinion on case law. In her report, she offered a number of opinions such as whether the language of Amtrak’s Arbitration Agreement, and more specifically its delegation clause, is ambiguous, and whether the delegation clause is unenforceable or invalid as unconscionable. She also offered opinions as to whether the various passengers formed a contract with Amtrak. In reaching her conclusions, she examined the law of agency and legal principles of actual and apparent authority.
Analysis
Rostron and Abdel-khalik are legal experts, who are being offered to provide their legal opinions regarding a number of legal issues in dispute in these two consolidated cases. They are not being offered to assist a factfinder in understanding a disputed fact.
Allen Rostron
With regard to Rostron, Defendants argued that his opinion — that Amtrak is engaged in a government action for constitutional purposes when it sells tickets — is based on a review of the facts. But whether Amtrak is engaged in a government action for purposes of the Constitution is a legal conclusion, and Defendants admitted that Rostron relied extensively on cases from the Supreme Court in reaching his conclusion. They argued that “he reviewed those cases, not for their legal principles, but for their rendition of similar facts essential to answering the question posed by this Court and for the way that the Court treated those facts.” In other words, Rostron formed his opinion by looking for legal precedent, and he then applied his knowledge of the law to the facts. This is legal reasoning and analysis.
As a result, the Court found that Defendants are offering Rostron to provide legal opinion, contrary to Rule 702.
Jasmine C. Abdel-khalik
As for Professor Abdel-khalik, Defendants argued that her expert opinion is being offered to assist the Court in understanding how a consumer might understand Amtrak’s Arbitration Agreement.
Defendants’ characterization of Abdel-khalik’s report is not accurate. Abdel-khalik did more than “occasionally” reference legal terminology or cases. Basically, she applied the facts of the case — which does include the language of the Arbitration Agreement — to what she considered to be relevant case law. She offered opinions on a number of legal issues involved in this dispute including the following: whether Amtrak’s Arbitration Agreement is ambiguous; whether it is unconscionable; whether there was mutual assent; whether a contract was formed; if a contract was formed, what are its terms; and whether the Defendant passengers can be bound by the actions of persons who bought tickets for them.
Held
The Court granted BNSF Railway Company’s motion to exclude the opinions of Defendants’ experts Allen Rostron and Jasmine Abdel-Khalik.
Key Takeaway
Contract formation, interpretation, and construction are legal issues to be determined by the Court. Like Rostron, Abdel-khalik formed her opinions by applying her knowledge of the law to the facts of the case, which is legal reasoning. Abdel-khalik is not being offered to assist a trier-of-fact in understanding a disputed fact, but rather Defendants sought to introduce Abdel-khalik’s legal opinions, which is not allowed.
