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  • Insurance Expert Witness’ Ultimate Conclusions about the Defendant’s Conduct Rejected

    Insurance Expert Witness’ Ultimate Conclusions about the Defendant’s Conduct Rejected

    This matter arises out of a motor vehicle accident (“MVA”) on May 15, 2017, in Denver, Colorado. Plaintiff, Richard Marion Jr was driving a vehicle registered in the State of Nebraska and insured by American Family under a Nebraska family car policy and Umbrella policy (“Policy”) issued to Plaintiff’s parents, Richard and Angela Marion. Marion filed a claim against the tortfeasor and received American Family’s consent to settle with the tortfeasor’s insurance carrier for policy limits of $100,000.00. Plaintiff also sought underinsured motorist benefits (“UIM”) under his Policy.

    American Family evaluated the information received from Plaintiff and initially offered Plaintiff $60,000.00, followed by two additional offers of $70,000.00 and $80,000.00. Plaintiff did not respond to American Family’s offer of $80,000.00 and instead filed this action. He sought UIM benefits under two policies, a Nebraska family car policy with UIM coverage limits of $250,000.00, and an umbrella policy with UIM coverage limits of $1,000,000.00. Plaintiff asserted claims for: (1) breach of contract and/or determination of benefits owed; (2) common law bad faith under Colorado law; and (3) statutory bad faith.

    In support of his claims against American Family, Plaintiff disclosed Lorraine Berns as his retained liability expert, along with her affirmative expert report. Defendant American Family Mutual Insurance Company filed a motion to limit the testimony Plaintiff’s expert, Lorraine Berns, pursuant to Rule 702 and Rule 403.

    Insurance Expert Witness

    Lorraine Berns provides insurance consulting and expert witness testimony in the area of insurance bad faith/good faith claims-handling practices based upon insurance claims industry standards. She has worked in the insurance industry since 1991 and has been a consultant and expert witness in this field since 2006. She also provides consulting services to attorneys in the areas of settlement strategies, pre-litigation strategies, investigations, negotiations, and claims handling industry standards.

    Discover more cases with Lorraine Berns as an expert witness by ordering her comprehensive Expert Witness Profile report.

    Discussion by the Court

    Opinions that Defendant Unreasonably Delayed Benefits

    Defendant argued that Berns’ opinions that it unreasonably delayed benefits to Plaintiff are legal conclusions and therefore improper expert opinion that should be excluded from trial. Plaintiff responded that he had no intention of asking Berns to usurp the role of the jurors. Instead, Plaintiff explained that he intended to question Berns about her background in automobile insurance claim handling; the facts and data she reviewed; her knowledge of insurance industry standards applicable to the handling of UIM claims; her observations / conclusions as to whether the insurer’s claim handling evidenced compliance with industry standards.

    Under Federal Rule of Evidence 704(a), an expert’s opinion is not inadmissible simply because it embraces an ultimate issue to be determined by the trier of fact. The Court concluded that Berns may offer testimony articulating what she believes to be the relevant industry standards, and explaining—factually—how Defendant’s conduct did or did not comport with those standards. However, the Court excluded Berns’ opinions that Defendant’s conduct was unreasonable or insufficient as a matter of law, or was in violation of any statute.

    Opinions Concerning Defendant’s Motives or State of Mind

    Defendant argued that Berns’ “speculative opinions regarding American Family’s motives or state of mind during the handling of Plaintiff’s claim are impermissible and should be precluded from trial.” Defendant added that such opinions concerning Defendant’s motivation or state of mind regarding policy limits are not based on any personal knowledge or personally observed facts or data.

    The Court granted in part and denied in part this portion of the motion. The Court granted the Motion to the extent that Plaintiff may not elicit testimony regarding Defendant’s motives or state of mind because such testimony would constitute speculation. However, the Court denied the Motion to the extent Berns is permitted to testify about facts from which the jury could infer intent, as such testimony is proper expert testimony.

    Opinions Regarding Nebraska Law

    Defendant argued that Berns is not qualified to render opinions regarding Nebraska’s Unfair Claims Settlement Practices Act. Defendant emphasized that Berns has not worked in the insurance industry in Nebraska, has not evaluated a Nebraska claim, and is not familiar with Nebraska law. Additionally, Defendant argued that opinions regarding American Family improperly or incorrectly applying Nebraska law (in other words, saying that Defendant should have applied Colorado law) to Plaintiff’s claims are also impermissible expert opinion that usurp the function of this Court.

    The Court granted the motion to the extent that Berns was precluded from offering opinions on Nebraska’s Unfair Claims Settlement Practices Act. However, the motion was denied to the extent that Berns may offer opinions concerning whether Defendant’s offers of compromise complied with the applicable insurance industry standards.

    Held

    The Court granted in part and denied in part the Defendant American Family Mutual Insurance Company’s motion to limit the testimony Plaintiff’s Expert, Lorraine Berns.

    Key Takeaways:

    • The Court excluded Berns’ opinions that Defendant’s conduct was unreasonable or insufficient as a matter of law, or was in violation of any statute. She was unqualified to offer such opinions as a matter of legal expertise and such ultimate conclusions would not be helpful to the jury and would improperly intrude on its fact-finding function.
    • Only the Court will determine what law applies to the remaining claims in this case, and Berns may not offer opinions concerning which state’s law Defendant should have applied.

    Case Details:

    Case Caption: Marion V. American Family Mutual Insurance Company, S.I.
    Docket Number: 1:22cv1330
    Court: United States District Court, Colorado
    Order Date: July 12, 2024
  • Ex parte communications between an attorney and an opposing party’s expert witness is not prohibited under Connecticut law

    Ex parte communications between an attorney and an opposing party’s expert witness is not prohibited under Connecticut law

    Epright sought to recover underinsured motorist benefits from Liberty Mutual in connection with a motor vehicle collision. Epright allegedly sustained multiple injuries, including an injury to her left shoulder. During her deposition, Epright testified that she had experienced shoulder pain since the date of the accident.

    Liberty Mutual retained an orthopedic surgeon, James Depuy, to provide testimony regarding damages and causation. During the deposition, Depuy stated that he had reviewed all of Epright’s medical records and that they contained no indication that Epright complained of shoulder pain until well after the accident. Depuy’s opinion was that the medical treatment Epright received with respect to her left shoulder was not related to the motor vehicle accident.

    Kevin Brignole, an attorney working for the firm representing the Plaintiffs, asked Depuy whether it would change his opinion if Depuy learned that Epright in fact had been complaining of shoulder pain since the date of the accident, to which Depuy responded that such information might change his opinion.

    Subsequently, without informing counsel for Liberty Mutual, Timothy Brignole, another attorney at the firm, instructed his paralegal, Sandra H. Bryan, to contact Depuy’s office to schedule an appointment for Depuy to perform a medical examination on Epright for a fee. That same day, Kevin Brignole filed a detailed expert disclosure with the trial court, indicating that Epright intended to call Depuy as an expert witness.

    Thereafter, Depuy conducted the medical examination of Epright, and opined that Epright’s shoulder injury was causally related to the accident.

    This case requires us to consider whether, under Practice Book § 13-4, an attorney may be sanctioned for engaging in ex parte communications with an expert witness who has been retained and disclosed by the adverse party for the purpose of providing testimony in litigation.

    Discussion by the Court

    The trial court imposed monetary sanctions after finding that attorneys with the firm engaged in impermissible ex parte communications with Depuy. The trial court determined that the firm’s communication with Depuy was a clear violation of the rules of expert discovery set forth in § 13-4. The Appellate Court reversed the order of the trial court, concluding that § 13-4 does not clearly prohibit ex parte communication between an attorney and an opposing party’s disclosed expert witness.

    The firm representing the Plaintiffs argued that neither Connecticut case law nor the rules of practice limit or prohibit a Plaintiff from contacting and thereafter disclosing the Defendant’s disclosed expert witness as the Plaintiff’s own expert.

    In 2008, the judges of the Superior Court amended Practice Book § 13-4, which amendment became effective in 2009. Prior to that time, the rule expressly limited the procedure for communication with an opposing party’s expert to interrogatories to an opposing party and/or formally noticed depositions of the expert.

    In 2009, the rule was amended, and the language that limited the methods of communication with an opposing party’s expert was removed. The current rule did not include the language that existed in the rule before the 2009 amendments, which expressly confined communication with an opposing party’s disclosed expert to interrogatories served on the opposing party or depositions.

    To conclude, the Connecticut Supreme Court affirmed the judgment of the Appellate Court.

    Held

    The Connecticut Supreme Court agreed with the Appellate Court that the trial court improperly imposed sanctions on the firm for conducting ex parte communications with an expert witness previously disclosed by Liberty Mutual.

    Key Takeaway:

    This case requires us to consider whether, under Practice Book § 13-4, an attorney may be sanctioned for engaging in ex parte communications with an expert witness who has been retained and disclosed by the adverse party for the purpose of providing testimony in litigation. The trial court determined that the firm’s communication with Depuy was a clear violation of the rules of expert discovery set forth in § 13-4. The Appellate Court reversed the order of the trial court, concluding that § 13-4 does not clearly prohibit ex parte communications between an attorney and an opposing party’s disclosed expert witness. The Connecticut Supreme Court agreed and, accordingly, affirmed the judgment of the Appellate Court.

    Case Details:

    Case Caption: Epright v. Liberty Mutual Insurance Company
    Docket Number: SC 20751
    Court: Connecticut Supreme Court
    Order Date: July 11, 2024
  • Safety Engineering Expert Witness’ Opinions About the Fall Hazard Admitted

    Safety Engineering Expert Witness’ Opinions About the Fall Hazard Admitted

    Plaintiff Guadalupe Garcia Al-Dahwa (“Al-Dahwa”) alleged that she suffered personal injuries as the result of a trip-and-fall accident in the parking lot of a movie theater owned by American Multi-Cinema, Inc. (“AMC”). Al-Dahwa averred that AMC had failed to warn her of the dangerous condition.

    Al-Dahwa, who said she suffered from a physical disability, contended she tripped and fell in a ‘designated walkway because the concrete in the walking area was cracked, broken, and not level.

    Plaintiff designated Jason English as a testifying expert witness. Jason English opined that the principal causative factor related to [Al-Dahwa’s] fall was the presence of an abrupt vertical rise and broken concrete disrepair in the accessible route providing access to the disabled parking area.

    AMC insisted that English’s proffered opinions will not help the jury understand the evidence or determine a fact issue. Second, AMC argued that the probative value of English’s opinions are substantially outweighed by the danger of unfair prejudice, confusing the issues, and misleading the jury. 

    Safety Engineering Expert Witness

    Jason English is a licensed Professional Engineer, holding a B.S. in Industrial Engineering with a specialty in Systems Safety Engineering and an M.S. in Safety Engineering from Texas A&M University. English has also completed post-graduate coursework in the Department of Architecture at Texas A&M, focusing on the evaluation and design of means of egress components. He is a member of the American Society of Safety Professionals, Human Factors and Ergonomics Society, National Safety Council, and International Code Council. Since 1999, English has worked as a professional engineering consultant, primarily consulting in the field of safety engineering, including workplace safety, premises safety, product safety, safety management, and human factors/ergonomics. He also serves on several safety standard development committees for the American Society of Testing and Materials International.

    Get the full story on challenges to Jason English’s expert opinions and testimony with an in-depth Challenge Study. 

    Discussion by the Court

    Reliability and Relevance Of English’s Opinions

    In AMC’s view, this is a relatively simple and straightforward case: Al-Dahwa “contended that she tripped and fell over a clearly visible area of concrete that was cracked and unlevel.” 

    In response, Al-Dahwa argued that English’s testimony will assist the jury because his knowledge and experience on the issues relevant to the case are beyond that of the average juror. 

    The Court found the subjects that English intended to address at trial were directly relevant to the elements of Al-Dahwa’s premises liability claim. For example, English planned on testifying that pedestrians, like Al-Dahwa, frequently fail to see hazards in front of them as they walk. This opinion, which English based on published human factors literature, was relevant to both the second element (whether the uneven surface on the walkway posed an unreasonable risk of harm) and the fourth element (proximate causation).

    English also intended to testify that the walkway where Al-Dahwa tripped and fell did not comply with the ADA, the TAS, and other applicable safety codes. This testimony was relevant to the third element of a premises liability claim—whether AMC failed to take reasonable case to reduce or eliminate the risk.

    Similarly, English’s proposed testimony that AMC should have “establish[ed] and implement[ed] a proper safety program to identify, evaluate, and correct hazards with the reasonable potential to cause serious injury” also addressed the third element.

    English’s Testimony Was Not Unfairly Prejudicial

    AMC argued that English’s testimony should be excluded under Rule 403 because it “would unfairly prejudice [AMC], confuse the issues, mislead the jury, and improperly bolster [Al-Dahwa’s] liability position.” The Court held that AMC was simply trying to recast its arguments concerning the reliability and relevance of English’s opinion through the lens of Rule 403. The Court already flatly rejected those arguments.

    Held

    The Court granted the Defendant’s motion to exclude the testimony of Jason English.

    Key Takeaways:

    • Once the proponent of an expert meets the threshold requirements of expertise, reliability, relevance, and helpfulness, the Court should generally admit the evidence.
    • English’s knowledge and experience related to the safety and accessibility codes applicable to where the incident occurred, safety engineering, when and how falls occur on premises are beyond that of the average juror. 

    Case Details:

    Case Caption: Garcia Al-Dahwa V. American Multi-Cinema, Inc Et Al
    Docket Number: 4:23cv2010
    Court: United States District Court, Texas Southern
    Order Date: July 11, 2024
  • Insurance Law Expert Witness’ Opinions Excluded Despite his Vast Experience

    Insurance Law Expert Witness’ Opinions Excluded Despite his Vast Experience

    A district judge in Ohio barred an expert in insurance law from testifying because he lacked sufficient expertise in insurance litigation despite his long and distinguished career.

    This action arises out of a material breach of insurance policies by Defendant Nancy Caraballo, who entered an unreasonable and collusive $36 million settlement with the Estate of Jordan Rodriguez (“Jordan”), a 5-year-old Cleveland boy who died tragically in late 2017, and whose body was discovered buried in his mother’s backyard. In connection with that tragic death, Caraballo pleaded guilty to four felonies concerning a benefits-fraud scheme she entered into with Jordan’s mother, which she tried to cover up by falsifying records related to her work purporting to provide Jordan’s mother with services as a parent educator.

    Prior to Caraballo’s breach, Princeton Excess and Surplus Lines Insurance Company (“PESLIC”), as the insurer of Caraballo’s former employer, Catholic Charities Corporation (“Catholic Charities”), was supporting good faith settlement discussions for a reasonable resolution with the Estate on behalf of both Caraballo and Catholic Charities. PESLIC had also agreed to reimburse Caraballo’s covered defense costs despite several policy defenses asserted under a reservation of rights.

    Caraballo was informed repeatedly that any settlement with the Estate in excess of the policies’ $1 million retained limit required the consent of PESLIC. Rather than honor her obligations to PESLIC, Caraballo agreed to a $36 million settlement, an amount that no independent rational actor would agree to pay. Caraballo’s material breach of the obligations imposed by the policies prevented both her and the Estate from obtaining indemnification or any other benefits from PESLIC.

    The Estate retained Judge William Taylor to render an opinion regarding whether PESLIC (1) “maintained control of” the underlying State Court litigation; and/or (2) engaged in “bad faith” towards Caraballo. 

    Plaintiff Princeton Excess and Surplus Lines Insurance Company (“PESLIC”) filed a motion to exclude the report and testimony of Judge William Taylor, submitted by Defendant Michelle Rodriguez, as the Administrator of the Estate of Jordan Rodriguez (“the Estate”).

    Insurance Law Expert Witness

    Judge William Taylor graduated from Northwestern University School of Law in 1979. He worked as an associate at the law firm of Peterson Ross from 1979 to 1982. While employed at Peterson Ross, Judge Taylor practiced insurance litigation, including representing Lloyd’s of London. Judge Taylor left Peterson Ross in 1982, and moved to Cuyahoga County, Ohio where he helped run a gubernatorial political campaign for Jerry Springer. After that, he moved to California and worked on another political campaign. In 1983, Judge Taylor joined the law firm of Sachnoff Weaver, where he practiced “business litigation.”

    Judge Taylor then worked as the Chief of Litigation of Revenue for the Illinois Attorney General’s Office from 1985 to 1987. He testified that, in this position, he was a “tax collector,” supervised 30 people, and appeared in court occasionally. From 1987 until approximately 1989 or 1990, Judge Taylor worked on several political campaigns, including those of Walter Mondale, Michael Dukakis, Harold Washington, and Carole Mosley Braun. In 1990 or 1991, Judge Taylor went into private practice, where he did “litigation, real estate, wills, divorces” and “whatever came in the door.”

    Get the full story on challenges to Judge William Taylor’s expert opinions and testimony with an in-depth Challenge Study. 

    Discussion by the Court

    The Estate retained Judge William Taylor to render an opinion regarding (1) PESLIC’s supposed control of “the litigation in the underlying case” in state court; and whether PESLIC (2) engaged in “bad faith” towards Caraballo. 

    Judge Taylor opined that “it was apparent that PESLIC refused to agree to indemnify Caraballo.” PESLIC argued that not only did Judge Taylor lack the requisite qualifications to testify, but also that his opinions were irrelevant and unreliable.

    Qualifications

    The Court held that Judge Taylor was unqualified to provide expert opinion regarding PESLIC’s control of the state court litigation and for PESLIC acting in bad faith in its control of the litigation regarding Caraballo. While Judge Taylor has a long and distinguished career as a lawyer, jurist, and campaign manager, the Court found that he did not have sufficient expertise in insurance litigation to provide a proper foundation for him to testify about whether PESLIC “maintained control of” the underlying state court litigation or engaged in bad faith under Ohio law.

    Reliability

    The Court found that neither Judge Taylor’s three years of experience at an insurance defense firm in the 1980’s nor his tenure as a state trial and appellate judge were sufficient to demonstrate that he had specialized knowledge and experience regarding whether an insurance company “maintains control of” litigation and/or engages in bad faith. To sum it up, Judge Taylor’s reliance on his experience and some ill-defined concept of “logic” to form his opinions did not constitute a reliable methodology.

    Legal Conclusions

    The Court found that several of Judge Taylor’s opinions crossed the line into inappropriate legal conclusions. For example, Judge Taylor opined that: (1) PESLIC’s alleged conduct “constituted legal maneuvering which at a minimum is a constructive refusal to indemnify;” (2) “PESLIC’s refusal to make any offer of settlement within their policy was arbitrary, capricious, and in bad faith;” and (3) “the decision of Caraballo to settle the claim despite the insurer refusing to give written consent was not arbitrary or unreasonable.” 

    Held

    The Court granted PELSIC’s motion to exclude the testimony of Judge William Taylor.

    Key Takeaways:

    Caraballo and the Estate entered into a $36 million settlement agreement without PESLIC’s consent—an obvious breach of the PESLIC insurance policies’ consent-to-settle provisions. Defendant’s expert, Judge Taylor was highly accomplished but his background and experience simply did not relate sufficiently to the subject matter on which he opined in the instant case. The Court held that several of Judge Taylor’s opinions about PESLIC’s alleged conduct crossed the line into inappropriate legal conclusions.

    • Expert testimony should not constitute legal conclusions regarding the ultimate legal issues.
    • Expert witness’ knowledge and experience should be such that his opinions will likely be helpful to or otherwise assist the trier of fact. 
    • Judge Taylor’s reliance on his experience and some ill-defined concept of “logic” to form his opinions did not constitute a reliable methodology.

    Case Details:

    Case Caption: Princeton Excess And Surplus Lines Insurance Company V. Caraballo Et Al
    Docket Number: 1:21cv1981
    Court: United States District Court, Ohio Northern
    Order Date: May 21, 2024
  • Law Enforcement Expert Witness’ Testimony Based on His Review of Relevant Materials

    Law Enforcement Expert Witness’ Testimony Based on His Review of Relevant Materials

    A district judge in Louisiana admitted the testimony of a law enforcement expert despite its alleged lack of documentary support and supporting methodology.

    This lawsuit stems from injuries sustained by Anthony Efthemes, a Louisiana State Police officer, while assisting in an emergency pursuit of a vehicle on Interstate 10 in Calcasieu Parish, Louisiana. The Plaintiff, Efthemes was tasked with deploying “stop sticks” on the interstate to intercept the target car, which was being pursued by several other police vehicles with their lights and sirens activated.

    Defendant Malik Aleem, driving an 18-wheeler, approached Efthemes’ point of interception around the same time as the target car. Aleem’s vehicle hit the stop sticks shortly after Efthemes deployed them, resulting in a violent tug on the device cord that caused injuries to Efthemes’ left hand.

    Efthemes subsequently filed a lawsuit in state court against Aleem, his employer, and their insurer. The suit asserts that Aleem was liable for Efthemes’ injuries due to his negligent actions, including failing to yield to emergency vehicles, failing to slow down, and not attempting to avoid the hazard. Efthemes claims Aleem’s careless operation of his vehicle directly led to the injuries sustained during the incident.

    Plaintiff has submitted a report from Kerry Najolia, who was retained to offer opinions on “policy, procedures, training, protocols, and the application of the tire-deflation devices” relating to this incident. Defendants filed a motion to exclude his testimony, arguing that his opinions did not satisfy the standards set forth in Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). 

    Law Enforcement Expert Witness

    Kerry Najolia has been qualified as, and has testified as, an expert on police practice, procedure, training, police officer survival/defensive tactics, police use of force, and police canines in numerous Louisiana state and federal courts. He has worked in various divisions in law enforcement, which includes patrol, investigations, Training and SWAT.

    Want to know more about the challenges Kerry Najolia has faced? Get the full details with our Challenge Study report. 

    Discussion by the Court

    Najolia issued two reports in this matter, in June 2021 and February 2024. In both documents he opined that Efthemes deployed the stop sticks “as he was trained and in accordance with LSP policy, procedures and protocols.”

    He noted the privileges accorded to law enforcement in emergency pursuit. He also emphasized that Efthemes was trained not to wrap any part of the tire deflation device around any part of his body, and instead “to hold the handle of the device, take the slack out and place the device across the road or highway.”

    Najolia concluded that the Troopers and other Officers were driving, acting and deploying the tire deflation devices with due regard for the safety of others and themselves.

    He allowed, however, that the trier of fact would determine the reasonableness of each party’s actions and could conclude that “Malik’s actions may not have entirely or partially contributed to Trooper Efthemes’s injury” if it determined that Efthemes had not followed his training.

    Defendants, however, found fault with certain statements in the report, asserting that they lacked documentary support and supporting methodology. They asserted that Najolia’s opinions were duplicative of those that will be elicited from two other Plaintiff witnesses.

    The Court held that Najolia’s reports reflected that his opinions on Efthemes’s use of stop sticks were based on his years of law enforcement experience as well as his review of discovery and relevant training materials. The Court added that the challenged factual assertions in this case concerned the credibility of the testimony, not the admissibility.

    Plaintiff may elect not to call the witnesses whose testimony overlaps with Najolia’s opinion or may elect not to elicit cumulative testimony. The Court cannot determine before trial whether such overlap creates a basis for exclusion.

    Held

    The Court denied Defendants’ Daubert motion to exclude the testimony of Kerry Najolia.

    Key Takeaways:

    Najolia opined that Efthemes deployed the stop sticks “as he was trained and in accordance with LSP policy, procedures and protocols” after Efthemes sustained injuries while assisting in an emergency pursuit of a vehicle. The Court held that Najolia’s reports reflected that his opinions on Efthemes’s use of stop sticks were based on his years of law enforcement experience as well as his review of discovery and relevant training materials.

    • Najolia’s application of law enforcement policies and procedures, through the lens of his experience, to the facts of this incident is within the realm of Rule 702 and potentially helpful to the trier of fact.
    • Challenged factual assertions typically concern the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination.

    Case Details:

    Case Caption: Efthemes V. Amguard Insurance Co Et Al
    Docket Number: 2:19cv1409
    Court: United States District Court, Louisiana Western
    Order Date: May 02, 2024
  • Physical Medicine Expert Witness Fails to Consider Alternate Causes

    Physical Medicine Expert Witness Fails to Consider Alternate Causes

    The personal injury case stemmed from a rear-end collision on August 7, 2019. The Plaintiff, Sarah Ann Stratemeyer filed negligence claims against Kyle Thomas Pliler and his employer, Northstar Construction Management Company, Inc., seeking damages for bodily injuries, loss of e arnings, and loss of ability to earn money. At the time of the accident, Sarah was a nursing student at Renaissance Health Institute. In January 2022, she failed her nursing school exit exam, which she attributed to a mild traumatic brain injury allegedly sustained as a result of the accident. The Plaintiff intended to call two expert witnesses: Dr. Craig H. Lichtblau, a physical medicine and rehabilitation doctor, to testify about future medical costs and disabilities, and Dr. Julianne Frain, a vocational rehabilitation expert, to discuss limitations on the Plaintiff’s future ability to work.

    Defendants requested that the Court prohibit Lichtblau and Frain from testifying about Plaintiff’s pre-incident intellectual and cognitive functioning and Plaintiff’s inability to pass her nursing school exit examination as a result of the 2019 accident.

    Defendants attacked the testimony on three bases: (1) neither expert is qualified to opine on these matters; (2) the experts’ testimony is ipse dixit, unreliable, and unsupported by facts or evidence; and (3) the testimony would confuse the jury. 

    Vocational Rehabilitation Expert Witness

    Dr. Julianne Frain is a Certified Rehabilitation Counselor, Certified Life Care Planner, and Diplomate with the American Board of Vocational Experts. She is typically hired in the areas of vocational rehabilitation, life care planning, or both concentrations combined. Dr. Frain has 15 years of experience handling claims within various forms of injury and family law matters. She renders opinions on vocational assessment, disability, pre-and-post incident earning capacity, re-employment, rehabilitation, and life care planning. Additionally, she provides insights on the usual and customary costs of medical care.

    Get the full story on challenges to Julianne Frain’s expert opinions and testimony with an in-depth Challenge Study. 

    Physical Medicine Expert Witness

    Dr. Craig H. Lichtblau specializes in physical medicine and rehabilitation, focusing on medical functional capacity and impairment levels. His areas of expertise include disability evaluations, chronic pain management and defining impairment, disability and cost for future medical care.

    Fortify your strategy by reviewing a Challenge Study detailing grounds for excluding Craig Lichtblau’s expert testimony.

    Discussion by the Court

    Julianne Frain

    Frain, a vocational rehabilitation expert, provided testimony based on her evaluation of the Plaintiff and review of medical records. She focused on assessing the Plaintiff’s future earning capacity and loss of earning potential following the 2019 accident.

    In her analysis, Frain assumed the Plaintiff would have likely completed her nursing program if the accident had not occurred. She presented this as an assumption rather than a causation opinion. She explicitly stated that she did not have independent medical causation opinions. Instead, she relied on medical records and diagnoses from treating doctors and other medical experts involved in the case.

    During her deposition, Frain initially expressed uncertainty about whether the Plaintiff would have passed the exit exam without the accident. However, she later opined that the 2019 accident was a “contributing factor” and “likely” caused the Plaintiff to fail the examination. Frain declined to offer opinions on the Plaintiff’s pre-accident intellectual or cognitive functioning. She deferred to neuropsychological evaluations for such assessments.

    While not explicitly mentioned in the Court’s analysis, she likely included an assessment of the Plaintiff’s work capacity and potential job options in her report, as is typical for vocational rehabilitation experts.

    Craig Lichtblau

    Lichtblau, an expert in physical medicine and rehabilitation, provided testimony focused on the Plaintiff’s medical functional capacity and level of impairment following the 2019 accident. In his report, he opined that the Plaintiff had the functional capacity to work 8 hours per day on an uninterrupted basis. He recommended “sedentary light” positions and noted that the Plaintiff’s disability would increase as she aged. He also stated that she would suffer from acute, intermittent exacerbations of chronic pain and discomfort. Lichtblau attributed many of the Plaintiff’s current medical conditions to the 2019 incident. He repeatedly stated that her medical issues were “secondary” to the injuries sustained in the accident.

    During his deposition, he described the Plaintiff’s injuries and how they affected her post-accident levels of cognitive functioning. However, he did not directly address her pre-accident intellectual functioning in his report or deposition. Regarding the Plaintiff’s exit examination failure, Lichtblau declined to comment on the likelihood of her passing the exam in the future but stated that it would be “a very difficult road for her” due to her injuries. He did not provide a specific opinion on whether the 2019 accident caused the Plaintiff to fail her exit examination.

    Findings of the Court

    The Court found that both experts failed to properly disclose opinions on the Plaintiff’s pre-accident intellectual functioning and causation for failing the exit exam. This was required under Federal Rule of Civil Procedure 26(a)(2)(B)(i). The Court emphasized that expert reports must include “a complete statement of all opinions the witness will express and the basis and reasons for them.”

    For Frain, the Court noted that her report did not offer opinions on pre-accident intellectual functioning. She explicitly stated in her deposition that she would not opine on this topic. Regarding the Plaintiff’s failure to pass the exit examination, Frain’s report mentioned the accident as a contributing factor. However, she presented it as an assumption rather than a causation opinion.

    The Court also determined that the Plaintiff failed to adequately refute the Defendants’ arguments in her response. The Plaintiff’s brief focused on general qualifications and methodology rather than addressing the specific topics the Defendant sought to exclude.

    For Lichtblau, in addition to the disclosure issues, the Court conducted a Daubert analysis. It found that his testimony on these topics did not meet the reliability standard. The Court noted a lack of methodology for assessing pre-accident intellectual functioning. It also found a failure to consider alternative causes for the exam failure, such as the low overall passage rate.

    Held

    The Court barred Julianne Frain and Craig Lichtblau from offering opinions on the Plaintiff’s pre-accident intellectual functioning and the causal link between the 2019 accident and her exit exam failure.

    Key Takeaways

    1. Experts must properly disclose all opinions they intend to offer at trial in their reports, as required by Federal Rule of Civil Procedure 26(a)(2)(B)(i).

    2. Parties must adequately respond to and refute opposing arguments in motions, addressing specific points raised rather than making general arguments.

    3. Expert testimony must meet the Daubert standard for reliability, which includes having a sound methodology, considering alternative explanations, and avoiding impermissible analytical leaps.

    4. Courts may exclude expert testimony on specific topics even if the expert is generally qualified in their field, particularly when the expert lacks the necessary basis or methodology for those specific opinions.

    5. Assumptions used in an expert’s analysis should be clearly distinguished from causation opinions.

    6. Failure to consider obvious alternative explanations (such as the low overall passage rate for an exam) can render an expert’s opinion on causation unreliable.

    7. The Court’s gatekeeping role under Daubert is crucial in ensuring that only reliable and relevant expert testimony reaches the jury.  

    Case Details:

    Case Caption: Stratemeyer v. Northstar Constr. Mgmt. Co.
    Docket Number: 9:23cv80147
    Court: United States District Court for the Southern District of Florida
    Order Date: April 16, 2024
  • Insurance Expert Witness’ Opinions About Considering Ten Years’ Worth of Medical Records Rejected

    Insurance Expert Witness’ Opinions About Considering Ten Years’ Worth of Medical Records Rejected

    A district judge in Georgia barred certain opinions of an life insurance industry expert because no authority, underwriting or otherwise, was cited in support of such opinions.

    This case is about whether Pacific Life was entitled to rescind two life insurance policies and deny claims for benefits under them when it learned during the contestable claim period that Jimmie Long (“Mr. Long”) made material misrepresentations about his history of, and treatment for, abusing alcohol. Plaintiff Ronald Blalock (“Plaintiff”) owned, and was the beneficiary under, both policies. The policies were issued in January 2022, approximately four months before Long died in a car accident. Seven days after Long’s death, his insurance producer submitted claims for the benefits provided for in the policies. In accordance with the policies’ terms, Pacific Life conducted a contestable claim investigation—a routine action taken when an insured dies within two years of a policy’s issuance—to determine if the benefits were payable.

    Long’s medical records and Pacific Life’s investigation revealed that Long made material misrepresentations in his applications for insurance coverage. Pacific Life accordingly decided to rescind the policies and deny Plaintiff’s claims. Apparently dissatisfied with Pacific Life’s decisions, Plaintiff commenced this lawsuit. Plaintiff asserted claims for breach of contract and bad faith failure to pay benefits against Pacific Life.

    Plaintiff identified Vera Dolan as an expert witness to support his
    claims. Plaintiff asked Dolan to investigate two issues. He asked her to investigate Pacific Life’s contestable claim review of the two policies to determine if the review was fair, reasonable, and consistent with the standard of care. He also asked Dolan “to investigate the denial of claim payment to Long’s policies beneficiary, Ronald Blalock.”

    Insurance Expert Witness

    Vera Dolan has been involved in the life insurance industry as an underwriter for over 41 years, since 1982.  She is one of the leading mortality experts in the life insurance industry. She writes underwriting manuals and policy and procedure manuals for life and health insurance companies.

    Get the full story on challenges to Vera Dolan’s expert opinions and testimony with an in-depth Challenge Study. 

    Discussion by the Court

    Dolan, addressed the question of whether the medical records warranted Pacific Life’s finding of material “alcohol abuse” and concluded that “Long’s underwriting profile was not consistent with the profile of an alcohol abuser as defined by Pacific Life’s underwriting guidance.”

    Dolan opined that “Pacific Life is falsely stating that reviewing ten years of medical records at time of claim is fair and justified, when only five years of the most contemporaneous medical records were reviewed at time of issue without any finding of alcohol abuse.” Pacific Life argued that Dolan’s opinion was based on “speculation” and “unreliable principles and methods.”

    The Court held that Dolan cited no authority, underwriting or otherwise, supporting this opinion. Dolan did not dispute that it was appropriate to ask Long about his medical history for the ten years preceding his application for insurance. Nor did she dispute that Pacific Life could appropriately rely on the truthfulness of the information Long provided when it issued the Policies.

    When Long died within the contestable period, the only means available to confirm the accuracy of that information was to request records from the providers who saw Long during that ten-year period.

    Held

    The Court excluded Dolan’s opinion regarding the consideration of ten years’ worth of medical records. Her other opinions were limited pursuant to the parties’ consent.

    Key Takeaway:

    Vera Dolan argued that Pacific Life’s practice of reviewing ten years of medical records at the time of claim, despite only reviewing five years at the time of policy issuance, was not fair or justified​. She added that Long’s underwriting profile was not consistent with the profile of an alcohol abuser as defined by Pacific Life’s underwriting guidance. The Court, however, rejected her opinion regarding the consideration of ten years’ worth of medical records.

    Case Details:

    Case Caption: Blalock V. Pacific Life Insurance Company
    Docket Number: 5:23cv14
    Court: United States District Court, Georgia Middle
    Order Date: July 09, 2024
  • Law Enforcement Expert Witness’ Testimony on Certain Customs and Practices Excluded

    Law Enforcement Expert Witness’ Testimony on Certain Customs and Practices Excluded

    This civil rights action arises out of an October 23, 2020 traffic stop involving Plaintiff, Kary Jarvis and Daytona Beach Police Department officers Marville Tucker and James Mackenzie. As a result of the traffic stop, Plaintiff was injured and filed a complaint alleging false arrest.

    Defendants, City of Daytona Beach as well as Marville Tucker and James Mackenzie filed respective Daubert motions to exclude the testimony of Plaintiff’s expert Thomas Tiderington. Tiderington opined that the Daytona Beach Police Department has consistently demonstrated a custom and practice of inadequately supervising, training, and disciplining its personnel.

    Law Enforcement Expert Witness

    Thomas J. Tiderington has served as a full-time law enforcement officer with three different police departments and as a Group Supervisor for the United States Drug Enforcement Administration’s South Florida Regional Task Force. He has trained over 10,000 federal, state, and local law enforcement officers on police practices and criminal investigations.

    Want to know more about the challenges Thomas Tiderington has faced? Get the full details with our Challenge Study report. 

    Discussion by the Court

    Opinion One

    Tiderington stated that Defendants’ actions were unreasonable, unjustifiable, and deviated from acceptable law enforcement standards. Defendants Marville Tucker and James Mackenzie argued that Tiderington’s opinion should be excluded because it is a legal conclusion and will mislead the jury.

    The Court held that Defendants’ motion to exclude opinion one was granted to the extent that Tiderington may not opine that Defendants’ application of force was unreasonable or unjustifiable. Defendants’ motion was otherwise denied as to opinion one.

    Opinion Two

    Tiderington stated that the Daytona Beach Police Department has a custom and practice of inadequately supervising, training, and disciplining its personnel and but for this pattern Plaintiff would not have been detained and incarcerated. 

    Defendants Marville Tucker and James Mackenzie argued that Tiderington’s opinion should be excluded because it is a legal conclusion that encroaches on the purview of the jury.

    The Court held that Tiderington’s report discussed his experience but failed to establish “how that experience led to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.” 

    Opinion two discussed the custom, practice, and patterns of the Daytona Beach Police Department, but the report only cited one example beyond the present case. Tiderington confirmed this limited basis for the opinion in his deposition. 

    The Court excluded Tiderington’s opinion two as unreliable because it lacked a reasoned analysis supported by data, identified standards, or comparison with practices in other sheriff’s offices.

    Held

    Defendant, City of Daytona Beach’s, motion to exclude expert opinions of Thomas Tiderington was fully granted by the Court. However, the Court granted in part Defendant Marville Tucker and Defendant James Mackenzie’s motion to exclude certain opinions of Tiderington.

    Key Takeaway:

    Tiderington’s opinion concluding that Defendants’ application of force was unreasonable or unjustifiable was excluded as to opinion one since it is a legal conclusion and could mislead the jury. Tiderington’s opinion in opinion two concerning Defendant’s custom and practice was also excluded because it lacked a reasoned analysis supported by data, identified standards, or comparison with practices in other sheriff’s offices.

    Case Details:

    Case Caption: Jarvis V. City Of Daytona Beach Et Al
    Docket Number: 6:23cv508
    Court: United States District Court, Florida Middle
    Order Date: July 08, 2024
  • Mechanical Engineering Expert Witness Not Allowed to Opine About the Accident or on the Credibility of Individuals

    Mechanical Engineering Expert Witness Not Allowed to Opine About the Accident or on the Credibility of Individuals

    This matter arises from the tragic death of James Lemaster, a technician employed by Orbis Corporation at the company’s manufacturing plant in Georgetown, Kentucky. Lemaster’s job duties involved fitting industrial molds for filling and pressing to produce various made-to-order plastic hardware. On August 12, 2021, Lemaster was operating a hoist crane to lift and move a large mold encased within a mold fixture. The crane was hooked onto the mold fixture with a swivel hoist ring manufactured by Defendant American Drill Bushing (“ADB”). While the mold and mold fixture were suspended twenty feet above ground, ADB’s swivel hoist ring failed causing the mold and fixture to fall. Lemaster was struck by the falling mold and fixture, and he was killed on impact.

    Plaintiff filed the instant lawsuit on behalf of Lemaster’s estate and alleged that the fatality was the result of negligence on the part of ADB and/or Defendant Strohwig Industries, Inc. (“Strohwig”).

    Strohwig filed a motion to exclude certain testimony by Plaintiff’s expert Paul Sweeney, a mechanical engineer, with regard to Sweeney’s statements alleging that Strohwig and American Bushing were aware of why the lifting bracket failed but are intentionally not disclosing that information.

    Mechanical Engineering Expert Witness

    Paul Sweeney is a registered professional mechanical engineer in the State of Connecticut with decades of experience in the field of cranes and rigging.

    Sweeney began his career in 1984 by graduating #1 in his class at the GDEB Career Development Program which places engineers in the shipyard as supervisors after intensive training. Sweeney has held several positions at GDEB.  As Ship Superintendent he managed the construction of missile compartments on Trident submarines. In 1990 Sweeney was promoted to the position of Supervisor of Crane Engineering where he held technical oversight for the safety, repair, maintenance, modification, overhaul, inspection, quality control, testing, and certification of Electric Boat’s cranes and nuclear lifting and handling equipment.

    Get the full story on challenges to Paul Sweeney’s expert opinions and testimony with an in-depth Challenge Study. 

    Discussion by the Court

    The Court held that Sweeney is not an expert on what the representatives of either American Drill or Strohwig know about the accident or on the credibility of individuals. Plaintiff did not offer Sweeney as an expert on those topics. Nor did he profess to be such an expert. He is a mechanical engineer. Accordingly, the Court will grant the motion to exclude any testimony from Sweeney that either Defendant knew why the lifting bracket fell and was intentionally withholding that information.

    Strohwig also objected to a statement in which Sweeney seemed to indicate that the Strohwig lifting bracket may have caused the swivel hoist ring to fail. However, Plaintiff conceded that there is no evidence in the record to support Sweeney’s statement that the lifting bracket may have caused the swivel hoist ring to fail. Accordingly, the Court prohibited this testimony.

    In its motion to exclude Sweeney, Strohwig also moved the Court to strike Sweeney’s report from the record, largely because of the accusations that Strohwig and American Bushing knew of the cause of the accident and have withheld that information. While Plaintiff did not object, the Court denied this portion of the motion.

    Held

    The Court granted in part and denied in part Strohwig’s motion to exclude Paul Sweeney’s testimony.

    Key Takeaway:

    Since Sweeney is not an expert on what the representatives of either American Drill or Strohwig know about the accident or on the credibility of individuals, the Court rejected any testimony by Sweeney that indicated that either Defendant knew why the lifting bracket fell and was intentionally withholding that information.

    Case Details:

    Case Caption: Livers V. Strohwig Industries Inc. Et Al
    Docket Number: 5:22cv211
    Court: United States District Court, Kentucky Eastern
    Order Date: July 08, 2024
  • Oil & Gas Expert Witness’ Statements of industry Customs and Practices Deemed Admissible

    Oil & Gas Expert Witness’ Statements of industry Customs and Practices Deemed Admissible

    On March 22, 2021, Plaintiff Brandon Long, an employee of Helmerich & Payne International Drilling Co. (“H&P”), was supervising the de-rigging of an oil rig in the Unita Basin near Myton, Utah.

    H&P hired a subcontractor to assist with moving the drilling rig and other equipment, which in turn hired Defendant J&C Enterprises, Inc. (“J&C”) to operate a crane as part of the de-rigging process. While Long was on the rig, employees of J&C allegedly removed some pins from a rig deck, which caused the load to shift and swing uncontrolled towards Long, hitting Long’s foot and pinning it between two other pieces of equipment. Long claimed J&C was negligent in securing the rig deck to the crane hook and has sued to recover for the injuries he sustained as a result.

    In defense of these claims, J&C has designated Daniel T. Reinke as an expert in oil and gas operations to testify on its behalf. Reinke opined that Long’s injury was the result of his own actions.

    Long filed a motion to strike Reinke’s opinions pursuant to Rule 702 as his “statements were simply lay testimony given the imprimatur of expert opinion and/or were unhelpful to the jury because they were untethered from any authority suggesting the customs and practices of the industry.”

    Oil & Gas Expert Witness

    Daniel Reinke is a professional engineer who has over 48 years of experience, both as an employee and consultant, in oil and gas operations. He has served as an operator, drilling engineer, reservoir engineer, and production engineer on over 2,000 oil and gas wells. He is the founder and president of an operating company which has served as operator and contract operator of more than 100 wells.

    Want to know more about the challenges Daniel Reinke has faced? Get the full details with our Challenge Study report. 

    Discussion by the Court

    The Court admitted Reinke’s opinions that Long’s injuries were the result of his own actions

    The Court held that since Long has not shown Reinke’s articulation of industry customs and practices is contrary to established standards or otherwise infirm, Reinke’s statement of those standards based on his own experience is sufficient for admissibility. In other words, there is nothing objectionable in Reinke’s statements that everyone on site has Stop Work Authority, that each employee is responsible for his own safety while working at the site and must follow his own employer’s safety policies, that each contractor performs specialized services requiring different skills and safety protocols, and that it is a basic safety rule of the oilfield not to locate oneself between two unstable pieces of equipment.

    The Court added that Reinke’s opinion that J&C was not directing the work reasonably appeared to be an outgrowth of his observations that each contractor was responsible for its own piece of the de-rigging process and that, as the owner of the rig, H&P was responsible for directing the work.

    Moreover, it is unlikely a lay jury could be expected to know the layout and components of an oil rig or how the various parts of the rig and the equipment involved in the derigging process move and interact with one another which is why the Court admitted Reinke’s opinions that Long’s injuries were the result of his own actions and not the fault of J&C, as well as his suggestion that Long would not have been injured had he located himself anywhere else.

    According to Rule 704, the Court found that Reinke explained the bases of his conclusions as to the relative fault of each party, and to the extent his testimony may embrace an ultimate issue in the case, it seemed likely to “assist, rather than supplant, the jury’s judgment.”

    One of Reinke’s opinions struck the Court as potentially problematic

    However, Reinke’s conclusion that, “based on the incident report published by H&P, Long did not follow the safety policies and procedures of his employer” struck the Court as potentially problematic.

    Since Reinke did not describe the contents of the report; it may be the conclusion whether Long violated his employer’s safety policies is self-evident from the document itself.

    Held

    The Court granted in part and denied in part the Plaintiff’s motion to strike the testimony of Daniel Reinke.

    Key Takeaway:

    The Court held that there is nothing objectionable in Reinke’s statements that everyone on site has Stop Work Authority, that each employee is responsible for his own safety while working at the site and must follow his own employer’s safety policies, that each contractor performs specialized services requiring different skills and safety protocols, and that it is a basic safety rule of the oilfield not to locate oneself between two unstable pieces of equipment. However, Reinke’s conclusion that, “based on the incident report published by H&P, Long did not follow the safety policies and procedures of his employer” struck the Court as potentially problematic since it was not at all apparent why it required expert interpretation.

    Case Details:

    Case Caption: Long V. J & C Enterprises, Incorporated
    Docket Number: 1:22cv2999
    Court: United States District Court, Colorado
    Order Date: May 15, 2024