Expert Witness Profiler

Tag: Estimate

  • Law And Legal Expert Not Allowed to Opine on the Remodeling Project

    Law And Legal Expert Not Allowed to Opine on the Remodeling Project

    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.

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

    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.

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

    Law And Legal Expert Witness

    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.

    Discover more cases with Joseph Hampton as an expert witness by ordering his comprehensive Expert Witness Profile report.

    Discussion by the Court

    a. Joseph Hampton

    (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’ property and 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 subfloor should 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
    Order Date: May 08, 2026
  • Insurance Expert’s Testimony on Overhead and Profit Calculations Admitted

    Insurance Expert’s Testimony on Overhead and Profit Calculations Admitted

    Plaintiff Nirangtar LLC (d/b/a Red Roof Inn Cave City) (“Red Roof”) alleged that a storm caused damage to its property. At the time of the loss, Red Roof had an insurance policy with Defendant Navigators Specialty Insurance Company (“Navigators”). Because Navigators has not paid Red Roof for its claimed losses, Red Roof filed suit in Barren Circuit Court (Kentucky), which Navigators removed to Federal Court.

    Red Roof has recently disclosed expert witnesses, including Deanna Ramsey (“Ramsey”) and Dennis James Kurttila (“Kurttila”). Ramsey, a certified public accountant, was disclosed to express opinions regarding Red Roof’s lost revenue; Navigators contended that Red Roof provided her with the necessary information, then she “simply multiplied (the number of rooms) times (the number of nights they were allegedly unavailable) times (the average rental rate).” Kurttila, a public insurance adjuster, was offered to provide his cost estimate for Red Roof’s repairs and losses resulting from the storm.

    Navigators filed motions to exclude the testimony of these two experts.

    Insurance Expert Witness

    Dennis James Kurttila has been in the construction and general contracting business since 1996. He has gained substantial work experience since 2007 in the claims industry and submitting/ parent damage claims. He is licensed as a Public Insurance Adjuster in the following states: Kentucky, Tennessee, Indiana and Mississippi.

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

    Accounting Expert Witness

    Deanna Ramsey, CPA, is a certified public accountant. She has a master’s in accounting. She has prepared individual and business tax returns involving several issues related to trusts, estates, adoptions, independent contractors, education trusts, farming (business and sale), and other variations of business issues.

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

    Discussion by the Court

    Red Roof did not object to the exclusion of Ramsey’s testimony. Certainly, a jury would be capable of performing simple multiplication without the aid of an expert, so that motion was granted. Red Roof did, however, contest the exclusion of Kurttila’s testimony. Navigators argued that Kurttila’s testimony should be excluded because it is unreliable and unhelpful, but did not question Kurttila’s qualifications.

    A. Reliability

    Navigators argued that Kurttila’s proffered testimony is unreliable. Navigators asserted that Kurttila is biased and contested the reliability of his methods and the factual basis of Kurttila’s report.

    1. Bias

    It is not uncommon for employees of parties—and sometimes the parties themselves—to testify as experts. Thus, though Kurttila may have just “switched hats” from public adjuster to expert witness, that is not sufficient reason to exclude his testimony.

    2. Methods

    a. Overhead and Profit

    Navigators asserted that Kurttila’s testimony relating to his overhead and profit (“O&P”) calculations was unreliable because Kurttila did not know whether Red Roof had retained a contractor nor whether Red Roof could be paid for O&P under Kentucky law. He did testify that, in his opinion, Red Roof should be paid for O&P, that this is standard practice in the insurance business, that this is the case in Tennessee, and two Kentucky hotels damaged in the same storm received settlements that included O&P. Thus, Kurttila had a reasonable basis in his knowledge and experience to include O&P in his estimate.

    b. Professional Standards

    Navigators noted that Kurttila was unable to articulate the professional standards he used in preparing the estimate.

    Red Roof did not contradict this assertion. Though unable to name any specific professional standards, Kurttila testified that he used his “years of contracting and public accounting and working with Xactimate” to come to his conclusions.

    Courts have held that Xactimate, a program used by insurance companies and public adjusters to develop estimates, is a reliable method for creating estimates.

    However, Kurttila’s inability to name any “professional standards” used does not make his estimate unreliable per se—Red Roof has demonstrated that Kurttila’s estimate has a basis in his knowledge of and experience with these sorts of estimates.

    c. Date

    Navigators highlighted the fact that Kurttila did not know why he used the month reflected in the estimate.

    The Court was convinced that Kurttila’s use of November of 2023 in his estimate did not make his testimony so unreliable that it should be excluded.

    November 2023 is after the storm loss occurred, and, on a practical note, the use of November 2023 rather than October 2024 is likely favorable for Navigators, as Kurttila believes prices would have only increased, resulting in a higher estimate.

    3. Factual Basis

    Navigators argued that Kurttila’s testimony should be excluded because he relied on questionable facts and figures provided by Red Roof. In many cases, Kurttila did not know how Red Roof acquired or calculated that underlying data. Additionally, Navigators avers that the claimed damages exceed the scope of Red Roof’s causation expert’s testimony.

    However, Kurttila has remedied some of the inaccuracies. Even where Kurtilla’s estimate may be inaccurate, however, it was based on information supplied to him by Red Roof or from his own observation. Kurttila may rely on Red Roof’s data in his estimate without independently verifying it, under the assumption that it was caused by the storm. Navigators may challenge that data and any assumptions at trial; any weakness in the factual support for Kurttila’s estimate goes to weight, not admissibility.

    B. Helpfulness

    Navigators argued that Kurttila only performed multiplication and addition to construct his estimate. However, Kurtilla did more than just “basic math.” He generated estimates for several line items using Xactimate, relying on his own professional experience and, in one case, own measurements.

    Held

    The Court granted the Navigators’ motion to exclude the testimony of Deanna Ramsey but denied the Navigators’ motion to exclude the testimony of Dennis Kurttila.

    Key Takeaway:

    Some courts have held that, because jurors can perform basic math, expert testimony that can be reduced to a simple calculation violates the principle that an expert’s testimony must involve “specialized knowledge” that “will help the trier of fact to understand the evidence or to determine a fact in issue” and is therefore inadmissible. However, courts “have also treated public claims adjusters and their use of Xactimate as within the realm of expert testimony.” Thus, Kurtilla’s preferred testimony will not be excluded on the basis that it is unhelpful.

    Case Details:

    Case Caption: Nirangtar LLC V. Navigators Specialty Insurance Company
    Docket Number: 1:23cv184
    Court Name: United States District Court, Kentucky Western
    Order Date: November 10, 2025
  • Construction Expert’s Opinion Regarding the Siding Replacement Excluded

    Construction Expert’s Opinion Regarding the Siding Replacement Excluded

    Tim Waldorf sued State Farm Fire and Casualty Company for breach of contract and bad faith stemming from State Farm’s denial of insurance coverage for damages allegedly caused to Waldorf’s residence following a hailstorm.

    State Farm filed a motion to strike the testimony of Aaron Brookens, one of Waldorf’s expert witnesses.

    Construction Expert Witness

    Aaron Brookens is the CEO and founder of Brookens Construction, a premier residential and multi‑family roofing and gutter firm serving Dane County and the greater Madison, Milwaukee, and Fox Valley regions. 

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

    Discussion by the Court

    State Farm filed a motion to strike Brookens’ testimony because Waldorf failed to comply with the expert disclosure requirements of Fed. R. Civ. P. 26(a)(2)(B).

    Waldorf responded that Brookens was not specially retained to provide expert testimony in this litigation and therefore was not required to comply with the disclosure requirements of Rule 26(a)(2)(B). Rather, Waldorf maintained that Brookens is a hybrid expert witness subject to the disclosure requirements of Rule 26(a)(2)(C).

    Expert Disclosure Requirements

    The question is whether Brookens is subject to Rule 26(a)(2)(B) or Rule
    26(a)(2)(C).

    State Farm contended Brookens is a retained expert because he was not involved in the underlying claim until the day before the suit was filed when Waldorf’s counsel requested an estimate from Chuck Weber, the original contractor on the claim.

    The Court agreed. For starters, Brookens did not have firsthand knowledge of the underlying facts of the claim as Waldorf argues; Weber did. Brookens did not personally inspect the property and based his opinion on the report and photos provided by Weber. Brookens’ opinions, therefore, were not formed through his own observations but at the request of Waldorf’s counsel and in connection with litigation.

    Further, Brookens stated that he understood the estimate was being requested because counsel was filing a lawsuit. Because hybrid expert witnesses may not “testify to any opinions reached for the first time at the prompting of Plaintiff’s counsel or in conjunction with the lawsuit,” Brookens was acting as a retained expert subject to the disclosure requirements of Rule 26(a)(2)(B).

    The fact that Brookens is not being provided monetary compensation for his services was also not dispositive.

    Rule 37 Sanctions

    State Farm contended that the failure to comply with Rule 26(a)(2) should result in the exclusion of Brookens’ testimony and opinion that the siding of Waldorf’s residence needs complete replacement.

    Waldorf did not argue that the failure to provide an expert report was harmless or justified. Instead, he maintained that because Brookens is a hybrid expert he was only required to disclose the subject matter of his testimony and a summary of his facts and opinions under Rule 26(a)(2)(C). However, given the Court’s determination that Brookens is a retained expert subject to the requirements of Rule 26(a)(2)(B), Waldorf’s argument that he need only comply with Rule 26(a)(2)(C) failed. Moreover, Waldorf provided no justification for his failure to comply with Rule 26(a)(2)(B) beyond his contention that Brookens did not fall under this standard.

    While Waldorf’s expert disclosures included Brookens’ notes and annotations to Weber’s photographs, this provided little to no explanation as to why, in this particular case, Brookens believed the flashing could not be replaced without replacing the entirety of the siding. Such testimony as Brookens’ offers on causation and damages in this case is clearly the province of a retained expert witness.

    Furthermore, the Court found that Waldorf’s failure was not harmless. State Farm did not learn the basis of Brookens’ opinions until his January 31, 2025 deposition. And even then, Brookens acknowledged that even though the step flashing “typically” needs to be replaced when replacing the shingles, there “is a chance that when those shingles come off, that step flashing is in great condition . . . and it doesn’t need to be replaced. That is a possibility.”

    Held

    The Court granted the Defendant’s motion to strike the testimony of Aaron Brookens.

    Key Takeaway:

    A “misunderstanding of the law does not equate to a substantial justification for failing to comply with the disclosure deadline.” And the nature of Brookens’ involvement in providing an estimate, as well as the nature of his opinions, belies the notion that Waldorf reasonably believed Brookens was not subject to Rule 26(a)(2)(B). It was Weber, not Brookens, who inspected the residence for damage and provided an estimate based on what he observed firsthand.

    Case Details:

    Case Caption: Waldorf V. State Farm Fire And Casualty Company
    Docket Number: 2:24cv538
    Court Name: United States District Court, Wisconsin Eastern
    Order Date: October 23, 2025
  • Economics Expert’s Testimony on Loss of Society Excluded

    Economics Expert’s Testimony on Loss of Society Excluded

    This is a medical negligence case filed by Plaintiff Tanya Soule, as holder of Power of Attorney for Marlene Do, her mother, a currently disabled adult, and Long Do, her husband. Specifically, Plaintiffs alleged that Defendants were negligent in failing to timely diagnose and manage Marelene’s ischemic stroke on December 11, 2019.

    Subsequently, Defendants Blessing Hospital; Scott Hough, M.D.; Shaila O’Dear, R.N.; Jason Little, APRN; Kristin Hampton, R.N.; Angelo Liana, M.D.; and Rebecca Dennison, R.N. filed a motion to exclude all but the present value of future life care opinion testimony of Plaintiffs’ expert witness on economics, Stan Smith, PhD.

    Economics Expert Witness

    Stan V. Smith, PhD is the President of Smith Economics Group, Ltd., headquartered in Chicago, Illinois, which provides economic and financial consulting nationwide.

    Moreover, Smith has worked as an economic and financial consultant since 1974. He has performed economic analysis in a variety of cases, including personal injury and wrongful death actions. Smith has over 40 years of experience in the field of economics and wrote the first textbook on Forensic Economic Damages. 

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

    Discussion by the Court

    Defendants sought to bar Smith from providing testimony at trial regarding purported loss of household/ family services sustained by Long Do, hedonic damages sustained by Marlene, and loss of society or relationship sustained by Long. Specifically, Defendants contend all of these opinions are based on methodologies that are unreliable and are not supported by facts specific to Marlene.

    Loss of Household/Family Services

    With respect to household/family services, Smith’s opinions included two subcategories alleged to be sustained by Long Do: (a) loss of housekeeping and household management services; and (b) loss of advice, counsel, guidance, instruction, and training services. Defendants argued that these damages are speculative and would not assist the jury.

    For example, regarding loss of housekeeping and household management services, Smith opined that Long suffered a loss in the amount of $378,775. Essentially, Smith multiplied the amount of time it would take a non-professional to complete a particular task by the costs it would take to hire a professional.

    In addition, Smith included a 50% non-wage component to the hourly wage rate. However, he acknowledged that Marlene was not a professional of any trade upon which he relied. Furthermore, he did not ask Marlene or Long whether they paid for any of the services considered. Smith admitted the calculation is his “estimate of the market value of the services performed by a female in the household on average.”

    To illustrate, Smith created three tables to show his calculations for past and future loss of housekeeping and household management services. He then created a similar calculation to opine on the monetary loss of advice, counsel, guidance, instruction, and training services for Long.

    Specifically, Smith assumed a loss of one hour per day for these advisory services based solely on his interview with Marlene’s daughter.

    On the other hand, Plaintiffs noted that loss of household services is a compensable form of injury. They alleged that Smith’s testimony involves the loss of household services sustained by the family from the time of Defendants’ alleged negligence through Marlene’s life expectancy.

    Conclusion

    The Court allowed Smith’s testimony regarding the loss of housekeeping and household management services while excluding his testimony concerning the loss of advice, counsel, guidance, institution, and training services.

    C. Hedonic Damages

    Smith opined on the reduction in value of life or loss of enjoyment of life for Marlene. Plaintiffs claimed that the hedonic value of life refers to the value of the pleasure, the satisfaction, or the utility that human beings derive from life, separate and apart from the labor or earnings of life.

    In his report, Smith stated that his “estimate of the value of life is consistent with estimates published in other studies that examine and review the broad range of economic literature on the value of life.”

    Smith estimated the value of life “to be approximately $5.9 million in year 2023 dollars.” Defendants noted that Smith only interviewed Marlene’s daughter. He did not interview Marlene or Long.

    Smith provided a “lower estimated impairment rating” and an “upper estimated impairment rating,” based on his range for either 50% or 80% reduction in value of life. Pursuant to his methodology, Smith estimated a total loss of value of life of $1,954,626 for 50% reduction and a total of $3,127,391 for 80% reduction. To determine future loss, Smith accounted for a discount factor to create a present value. He then arrived at the value of hedonic damages by reducing the $5.9 million by the percentage of disability he believes Marlene has suffered-either 50% or 80%. Defendants noted that Smith did not consult with a single medical professional to arrive at his impairment rating.

    Conclusion

    Defendants alleged that federal and state courts have routinely barred Smith’s testimony as to hedonic damages.

    After considering Smith’s testimony on hedonic damages, the Court agreed with the reasoning of the overwhelming majority of federal district courts. Therefore, the Court granted Defendants’ motion to the extent it sought exclusion of Smith’s testimony on hedonic damages.

    Loss of Society or Relationship for Long Do

    To begin with, Smith presented his opinions on loss of society or relationship relating to Long Do. In particular, Plaintiffs noted that Illinois law recognizes loss of society or relationship as a recoverable pecuniary loss. In other words, this is the total value of loss of society or relationship Long did and will suffer due to Marlene’s alleged injuries. Specifically, Smith testified that the loss is “the loss of love and affection that he has sustained, the loss of the quality of the relationship that he had that has impacted his quality of life.”

    Defendants noted that Smith calculated loss of society in the same manner as his calculation for reduction in value/hedonic damages for Marlene. This loss is calculated from 2019 through 2030, which ends at Long’s estimated life span of 81 years old. Smith picked $5.9 million as the value of each human life in 2023 dollars. He then arrived at the value of hedonic damages by reducing the $5.9 million by the percentage of disability he believes Marlene has suffered. For loss of society, Smith chose 50% disability. He determined Long’s loss of society was $403,273. For future loss, Smith accounts for a discount factor to create a present value.

    Conclusion

    As Defendants alleged, the jury is capable of processing that information to calculate damages guided by their observations, experience, and sense of fairness. The Court held that Smith’s opinions on this topic are speculative and potentially misleading in focusing on the statistically average person instead of the individuals in this case.

    Held

    The Court granted in part and denied in part the Defendants’ motion to exclude the opinions of Plaintiffs’ economic expert Stan Smith, Ph.D.

    Key Takeaway:

    Rule 702 requires a flexible inquiry and recognizes that the accuracy of proposed expert testimony can be explored adequately via the normal adversarial process of “vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.”

    It is “the soundness and care with which the expert arrived at her opinion” that is the focus of the inquiry and not “the ultimate correctness of the expert’s conclusions.”

    Case Details:

    Case Caption: Do Et Al V. Blessing Hospital, A Corporation Et Al
    Docket Number: 1:20cv1398
    Court Name: United States District Court, Illinois Central
    Order Date: September 23, 2025
  • Construction Expert Barred from Testifying on Established Damages

    Construction Expert Barred from Testifying on Established Damages

    The case arises from Belmere, L.P.’s claim that Steadfast Insurance Company failed to timely and adequately pay it proceeds due under its commercial lines policy after Belmere invested $26 million of its own funds to repair a 249-unit apartment complex in Houma, Louisiana that it alleged suffered “catastrophic damage” during Hurricane Ida.

    Through its lawsuit, Belmere sought (i) additional coverage under its policy with Steadfast, and (ii) penalties, attorneys’ fees, and interest for Steadfast’s alleged bad faith. 

    Steadfast filed a motion in limine to exclude the opinions of experts Mr. Byron Earls and Mr. Christopher Lipp.

    Belmere retained Earls to (i) “investigate the scope of completed repairs based on information provided”; (ii) “generate comparative estimates for typical building types”; and (iii) “generate a report providing an opinion on the projected measurement of loss based on extenuating circumstance[s] after the event.”

    Lipp, on the other hand, was retained to provide a “technical assessment of the exterior building envelope components inclusive of the roof, exterior walls and windows” with a focus “on the severity of the impacts of water intrusion sustained at Belmere, and its need to replace building materials that were ruined after becoming wet.”

    Construction Expert Witness

    Byron Earls has over 20 years of experience in building construction, both commercial and residential. He also has over 7 years of experience as a catastrophic adjuster handling catastrophic claims nationwide including large fire and water losses.

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

    Engineering Expert Witness

    Christopher Lipp has performed numerous envelope assessments, and investigations and has prepared construction documents based on those investigations. Lipp is experienced in the evaluation of distressed facade elements, including windows, doors, curtain walls, storefront systems, stucco, brick and fiber cement panels on both historic and new construction.

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

    Discussion by the Court

    Byron Earls

    Steadfast made the following contentions: (i) Earls’ methodology is insufficient to meet Daubert standards for reliability and will otherwise result in jury confusion; (ii) his expert report fails to address causation; and (iii) his testimony is irrelevant to determining the alleged cost of repairs, which will result in jury confusion.

    Since Belmere conceded that Earls’ testimony will not be used to establish the measure of its damages—”which are established by its own out-of-pocket costs”; accordingly, the Court granted Steadfast’s motion to the extent that it sought to exclude testimony or any part of the Earls’ report that estimated damages that have already been established by Belmere’s “repair bill.”

    While Earls’ testimony may be relevant for the purpose of rebutting an assertion by Steadfast that specific repair costs were excessive or that the property was not restored using like-kind and like-quality materials, but, the Court held that in its current form, the “proposed opinion [did not] assist the trier of fact to understand or determine a fact in issue.”

    The Court declined to admit any testimony or portion of the Earls report that estimated damages that have already been established by actual costs. If Steadfast presented an argument that the costs incurred by Belmere are somehow excessive or relate to betterments, the Court will allow Earls to opine in general terms (i) as to the reasonable nature of the actual costs or (ii) for the purpose of rebutting the contention that the costs amounted to betterments. As to the reasonable nature of the amount paid by Plaintiff, in no event will the expert state the specific amount of his estimate; merely that he estimated the amount of damages to be greater than the amount paid by Plaintiff. 

    Christopher Lipp

    Steadfast contended in brief fashion that Lipp’s testimony should be excluded for the following three reasons: (i) he did not inspect the property; (ii) he did not provide any opinion on the issue of causation of the alleged damages or the sufficiency of the repairs; and (iii) his “expert report and associated opinions rely heavily on the flawed, irrelevant, and unreliable opinions included in Earls’ report.”

    As a threshold matter, the Court denied Steadfast’s motion to the extent it sought to exclude Lipp’s testimony because (i) Lipp was qualified to render an opinion on his respective subject matter, and (ii) Steadfast has otherwise failed to provide the Court with enough analysis on the issue to make a ruling.

    However, the motion against Lipp’s report was granted to the extent that it relied on the Earls report.

    Held

    The Court granted in part and denied in part Steadfast’s motion in limine to exclude experts Byron Earls and Christopher Lipp.

    Key Takeaway:

    According to Rule 402, expert testimony must be relevant—not merely in the general sense that all testimony must be relevant, but specifically in the sense that the expert’s proposed opinion would assist the trier of fact in understanding or determining a fact in issue.

    Case Details:

    Case Caption: Belmere, L.P. V. Steadfast Insurance Company
    Docket Number: 2:22cv2689
    Court Name: United States District Court, Louisiana Eastern
    Order Date: June 30, 2025
  • Rule 26 Violation is Harmless with Regard to the Engineering Expert’s Repair Estimates

    Rule 26 Violation is Harmless with Regard to the Engineering Expert’s Repair Estimates

    In this insurance breach of contract case, Plaintiff  LJP Building, LLC designated Alfredo Brizuela as its damages expert in March 2024. That same month, Brizuela prepared an estimate to restore the property to its pre-loss condition. The estimate was based on replacement cost value (RCV) and totaled $655,054.64. Westchester deposed Brizuela in February 2025.

    Subsequent to Brizuela’s deposition, it was noted that Brizuela omitted applicable depreciation as to the $655,054.64 RCV of the estimate. As a result, on April 1, 2025, Brizuela supplemented his estimate solely to apply depreciation to the $655,054.64 RCV. There was no adjustment to any of the values, simply the application of depreciation to the previously estimated amount of $655,054.64 to derive an actual cash value (ACV) of $636,447.67.

    Defendant contended that Brizuela’s application of depreciation to his previously produced estimate is an “untimely disclosure” and “presents entirely new facts, evidence and substantially revised expert opinions that were never disclosed.”

    Engineering Expert Witness

    Al Brizuela is a Florida licensed professional engineer, general contractor and registered industrial hygienist. He graduated from the University of Miami in 1978 with a Bachelor of Science degree in architectural engineering. Shortly after graduation, he began working for Law Engineering Testing Company Inc., performing subsurface investigations for a multitude of government projects the most significant being the Metro Rail System.

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

    Discussion by the Court

    A. Brizuela’s April 2025 Report is a Supplement

    Westchester claimed that Brizuela’s “supplemental” affidavit is not a supplement at all. Rather, it presents entirely new facts, evidence, and substantially revised expert opinions that were not previously disclosed.

    The Court held that Brizuela’s updated report is properly characterized as a supplement, not a new disclosure. That is because the only change was to correct his prior estimate by applying depreciation. It includes no new model for calculating damages, new methodology, or new claim for damages to certain parts of the building that were not previously made.

    Even the portions of the initial and supplemental affidavits Westchester highlights shows that the only difference is Brizuela omitted applicable depreciation in his initial report. Since Brizuela’s supplemental report sought to correct a mistake (omitted depreciation), the Court held that it fell within the narrow purpose of Rule 26(e).

    B. Brizuela’s Supplement Was Timely

    According to Rule 26, Plaintiff had up to its pretrial disclosures, which are due July 11, 2025, to correct any inaccuracies. 

    Westchester offered no support for its conclusory argument that any supplement was due earlier. The Court held that Westchester does cite several cases that deal with prejudice caused to the party left without the chance to depose an expert after the discovery deadline. But prejudice (even if it exists) cannot override the deadlines in Rule 26. In any event, as discussed below, any prejudice can be remedied.

    C. Supplementation Was Harmless

    When a party fails to provide information required by Rule 26, as Westchester claims, they are “not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.”

    Weighing these factors, the Court found that any Rule 26 violation harmless. Brizuela’s testimony and repair estimates are seemingly critical. Without him, Plaintiff’s case may end. Though discovery has closed, Brizuela will make himself available for deposition. With this, Westchester can cure the deficiency. Westchester offers no argument that it would have to re-brief summary judgment if the supplement is allowed. The deposition is the better option considering the importance of the evidence.

    Westchester also sought to exclude the Brizuela’s supplement. The Court held that Plaintiff’s conduct, at least at this point, does not warrant excluding testimony that may prove essential to its case when any prejudice can still be cured.

    The Court, therefore, is convinced that Plaintiff should be allowed to supplement Brizuela’s expert disclosure.

    Held

    The Court denied Westchester’s motion to strike Plaintiff’s untimely supplemental expert witness affidavit and estimate of Alfredo Brizuela.

    Key Takeaway:

    Rule 26(e) permits supplemental reports only for the narrow purpose of correcting inaccuracies or adding information that was not available at the time of the initial report.

    Case Details:

    Case Caption: LJP Building LLC V. Westchester Surplus Lines Insurance Company
    Docket Number: 2:23cv792
    Court Name: United States District Court for the Middle District of Florida, Fort Myers Division
    Order Date: April 18, 2025
  • Construction Expert Witness Allowed to Opine on the Reasonableness of the Use of Xactimate

    Construction Expert Witness Allowed to Opine on the Reasonableness of the Use of Xactimate

    In November 2021, a fire caused severe damage to the home of Michael and Alexis Wright, located in Goldendale, Washington, a rural area about 70 miles from Yakima, Washington. The Wrights filed a claim with their insurer, State Farm, which immediately confirmed coverage. 

    In January 2022, the adjuster assigned to the Wrights’ file, Timothy Treat, finalized his initial estimate for the structural repair of the Wrights’ home. He used a software called Xactimate, which used data on labor and material costs to estimate total repair costs. Xactimate yielded an estimate for the Wrights’ home repair in the amount of $181,277.82.

    According to the Wrights, because they lived in Goldendale, a rural location, it took them several months to find a contractor willing to perform the repair.  By June 2022, they found a company willing to do the work for an estimated total cost of $259,244.61—nearly $80,000 above State Farm’s Xactimate estimate. 

    In November 2022, after extensive back-and-forth, the Wrights brought contractual and extracontractual claims against State Farm, alleging that State Farm failed to properly investigate and cover their losses.

    Among other arguments, the Wrights asserted that State Farm uses Xactimate, which “is designed with input and pricing data primarily sourced from the insurance industry,” to intentionally achieve “cost containment.”

    State Farm intended to offer opinion testimony from construction and repair expert Eugene Peterson “regarding [among other topics] the reasonableness of State Farm’s use of Xactimate to create repair estimates in this matter.”

    Wrights argued that Peterson’s opinion testimony was unsubstantiated, speculative, lacked foundation, amounted to legal opinions, and otherwise did not comport with Fed. R. Evid. 702 and 703.

    Construction Expert Witness

    Eugene Peterson is a Past President of both the Utah Home Builders Association and the Greater Salt Lake Home Builders Association. He is the CEO of Advise And Consult, Inc., expert witnesses & consultants for restoration, personal property & construction related matters in both the United States and Canada. He has facilitated peer group meetings for Business Networks, Inc., and for several years was an advisor, consultant & certified trainer for Xactware, Inc. (construction estimating software). Peterson has worked with the Xactimate since 1991, including beta testing new iterations of the program, training contractors on how to use the software, and creating the first online Xactimate training syllabus. 

    He also actively participates in the insurance appraisal process as either an umpire or appraiser.

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

    Discussion by the Court

    While Peterson admitted that State Farm estimates are written using the price lists from Yakima, Washington, which is over 70 miles from the loss location in Goldendale, he stated that the adjuster chose and applied an option found in the Xactimate estimating software for rural settings to account for the rural location. He explained, “when this option is applied, the software automatically factors and applies additional dollars to each line item to account for the increased labor and materials costs and the difficulty of working in a rural setting.” Likewise, Peterson added that this “‘rural/remote’ setting factors in some of the difficulties of material accusation, by bumping pricing of materials so that purchase can be made locally.”

    However, when Treat was asked during his deposition whether he was familiar with the “site access” drop-down feature, he testified, “I have not seen this.” Likewise, when Peterson was deposed in October 2024, he admitted that he “cannot say for certainty that Treat did use the “rural/remote” feature.”

    State Farm has shown, by a preponderance of evidence, that Peterson’s opinions are relevant and reliable

    The crux of the Wrights’ motion to exclude is that Peterson’s testimony was unreliable because he “based his opinion on a false premise, the premise that Treat knew of and used a critical feature of the software program which adjusts for remote sites such as the Wrights’ home.”

    In their reply brief, the Wrights provided other, additional grounds on which to question the reliability and relevance of Peterson’s opinions. For example, they pointed to Peterson’s allegedly false assertion that “Plaintiff Michael Wright completed the painting of their home.”  And they disputed the relevance and reliability of Peterson’s opinion “as to the value of Plaintiffs’ home.”

    Because these later arguments were improperly raised in a reply brief, the Court declines to consider them.

    The Court is not persuaded that his potential factual error about State Farm’s use of the “rural/remote” feature renders his entire opinion testimony unreliable

    The core issue in this case is whether Peterson’s statements about State Farm’s use of the ‘rural/remote’ feature in the Xactimate software render his entire opinion testimony unreliable.

    The Court held that Peterson easily clears the expertise threshold set by Daubert and Rule 702 because he has been working with Xactimate for over thirty years. Most of the opinions expressed in Peterson’s report are in fact unrelated to the “rural/remote” feature. To exclude such expert testimony would hinder objective factfinding and unduly prejudice State Farm.

    The Court cannot conclude that Peterson’s assertion about Treat’s use of the “rural/remote” feature was indeed false. The Wrights cited Treat’s deposition, in which he allegedly stated that he had never seen the “rural/remote” feature. But the portion of the deposition transcript they cited was missing from their evidentiary filing.

    Even assuming that Treat did express unfamiliarity with the “rural/remote” feature in his deposition—meaning Peterson was likely incorrect about its use here—the Court held that this error concerned the weight, not admissibility, of Peterson’s testimony.

    In summation, the Wrights are free on cross-examination to ask Peterson, for example, whether he knows for certain that Treat used the “rural/remote” feature when estimating the Wrights’ home repair costs. And they are also free to ask him whether, hypothetically, failure to use this feature would lead to an underestimate of rural home repair costs. Such testimony might aid their case. But they have not presented grounds to exclude his testimony entirely.

    Held

    The Court found that State Farm has met its burden of proving by a preponderance of the evidence that the opinion testimony of its construction and repair expert, Eugene Peterson, is relevant and reliable. The Court denied the Wrights’ motion to exclude Peterson’s expert testimony.

    Key Takeaway:

    When the baseline requirement of reliability is met, the factual basis of an expert opinion goes to 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.

    Peterson is well-versed with Xactimate and is clearly qualified to opine on State Farm’s use of the ‘rural/remote’ feature in the Xactimate software. Besides, most of the opinions expressed in Peterson’s report were in fact unrelated to the “rural/remote” feature. The Wrights are free to address their doubts during cross-examination.

    Case Details:

    Case Caption: Wright Et Al V. State Farm Fire & Casualty Company
    Docket Number: 2:23cv179
    Court: United States District Court, Washington Western
    Order Date: January 21, 2025
  • Adjuster Expert Witness’ Licensure Qualifies Him to Testify About Damage Causation

    Adjuster Expert Witness’ Licensure Qualifies Him to Testify About Damage Causation

    This case involves a Hurricane Laura claim by Plaintiff Rapides Station Land Company, LLC (“Plaintiff”), the owner of the property known as “Cowboy Town” located in Boyce, Louisiana, near Interstate 49, for alleged property damage attributable to the Hurricane. Markel American Insurance Company (“MAIC”) issued a builders risk policy of insurance to Plaintiff which provided coverage for an alleged “rehabilitation or renovation project” for the policy period of October 17, 2019, to September 1, 2020.

    According to the scheduling order, the final date for exchanging expert reports was April 24, 2023, the deadline for completion of discovery was May 31, 2023, and the deadline for taking the depositions of experts was June 2, 2023.

    RSLC designated Jeffery S. Major as an expert on public adjusting and estimating.

    Major’s expert report was produced to Markel on April 24, 2023. The report and supporting documentation were presented across two emails.

    The first email contained a folder labelled “Skyline Estimate” with three documents attached: a document showing the calculation of depreciation for the main building and the annex building, a second containing over 1,000 photos of the property purporting to show damage, and a third containing a 56-page estimate prepared using the industry standard Xactimate program. The second email contained an .esx file, which contained the underlying data used to prepare the Xactimate estimate. Markel was also provided with a 23-page written report, although it is unclear when this report was furnished, it too is dated April 24, 2023. 

    Motion to Exclude Major

    Markel asserted multiple issues with RSLC’s expert production and qualifications:

    (1) The production of Major’s report and the underlying .esx  file in multiple files caused confusion;

    (2) Major is unqualified to offer his opinion regarding the causation of damages because he is not licensed as an engineer, architect, or contractor;

    (3) Major’s opinions regarding causation of damages are unreliable and untested;

    (4) Major is unqualified to offer his opinion concerning best practices in the insurance industry because he has never worked on behalf of insurance companies;

    (5) Major offers opinions regarding Markel’s intent or motives without a proper foundation; and

    (6) Major offers legal opinions.

    Adjuster Expert Witness

    Jeffery S. Major is an expert on public adjusting and estimating. Major has been engaged in the practice of public adjusting in various capacities since at least 1990. Prior to that, Major was a builder and general contractor from 1983-1990. 

    Major has purportedly estimated, consulted, or adjusted over 600 commercial and 1,000 residential claims, many of which were hurricane related. He is apparently licensed as a public adjuster in 44 states and territories. Also, he lists twenty engagements as an insurance industry continuing education presenter or instructor. Major has recently been allowed to testify as an expert in the Western District of Louisiana regarding similar matters.

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

    Discussion by the Court

    Major is qualified to testify on issues of damage causation, repair costs, insurance industry customs, standards, and practices, and Markel’s conduct

    To begin with, Markel complained that Major is not licensed as an engineer, architect, or general contractor, that he is not a college graduate, and he has not worked for insurance companies. Markel contended that without these specific qualifications, Major is unqualified to offer his expert opinion on damage causation, repair costs, insurance industry customs, standards, and practices, or Markel’s conduct in adjusting the claim.

    However, Major has been engaged in the practice of public adjusting for over thirty years and worked in construction for nearly a decade. He is licensed as a public adjuster in 44 states and territories, has taught numerous continuing education courses in various aspects of public adjusting and insurance claim handling, and adjusted over 1,600 claims. The Court held that Major’s experience qualifies him to testify as to these issues commonly within a public adjuster’s purview, including damage causation, repair costs, industry customs, standards, and practices, and insurer conduct.

    Moreover, Markel’s contention that a person must hold a license as an architect, engineer, or contractor to testify regarding these issues have recently been rejected by this district. Major was recently qualified in this district to testify regarding “industry standards, customs, and practices applicable to handling insurance claims.” To the extent that Markel believes Major’s experience and licensure are inadequate to support his conclusions, it is entitled to subject his testimony to vigorous cross-examination and present contrary evidence in their defense.

    Major is not qualified to testify regarding Markel’s intent or motives or to offer legal opinions

    Markel complained that Major’s expert report impermissibly offers legal opinions and testimony on Markel’s intent or motives. Although Federal Rule of Evidence 704 permits an expert witness to give testimony that embraces an ultimate issue to be decided by the trier of fact, experts remain prohibited from rendering a legal opinion because there can only be a single arbiter of the law, the Court, and allowing parties to offer competing legal opinions would only serve to confuse juries. Further, Louisiana public adjusters are expressly prohibited from providing legal advice to an insured or otherwise engaging in the unauthorized practice of law.

    The Court held that Major will not be allowed to offer testimony on Markel’s intentions or motivations. Further, Major will not be permitted to offer his legal opinions, this includes assertions regarding Markel’s conduct specifically satisfying the elements of the Louisiana bad faith claim handling statutes. Such statements include assertions that Markel’s conduct was “arbitrary, capricious, and without probable cause”, “vexatious”, or performed in “bad faith.”

    RSLC satisfactorily complied with Rule 26

    RSLC provided Major’s expert report and underlying data to Markel within the deadlines set for expert disclosures. Markel apparently takes issue with the production being contained in multiple e-mails without clarification from RSLC’s counsel regarding the contents of each e-mail. Markel was afforded the opportunity to depose Major regarding the expert production and, as best as this Court can tell, RSLC does not intend to offer any expert materials that were not timely disclosed to Markel prior to Major’s deposition.

    The Fifth Circuit has established four factors to consider when deciding whether to exclude expert testimony, (1) the explanation for the failure to [submit a complete report on time]; (2) the importance of the testimony; (3) potential prejudice in allowing the testimony; and (4) the availability of a continuance to cure such prejudice. These factors do not inure to the benefit of Markel. The full report was timely submitted, albeit in separate communications. Markel recognized that it had the full report in a timely fashion. Markel has suffered no genuine surprise. Though the testimony is likely important, Markel will not be prejudiced by allowing it. In other words, there is no cause to exclude the report pursuant to Rule 26(a)(2).

    Held

    The Court granted in part and denied in part Markel’s motion in limine to exclude the testimony of Jeffrey Major.

    Key Takeaway:

    While the Court admitted Major’s testimony regarding damage causation, cost of repairs, the facts of Markel’s adjustment of the claim, and industry standards, customs, and practices applicable to handling insurance claims, Major was not allowed to offer testimony on Markel’s intentions or motivations. Further, Major was not permitted to offer his legal opinions, which includes assertions regarding Markel’s conduct specifically satisfying the elements of the Louisiana bad faith claim handling statutes.

    In conclusion, there can only be a single arbiter of the law, the Court, and allowing parties to offer competing legal opinions would only serve to confuse juries.

    Case Details:

    Case Caption: Rapides Station Land Co L L C V. Markel American Insurance Co
    Docket Number: 1:21cv3716
    Court: United States District Court, Louisiana Western
    Order Date: December 2, 2024
  • Economics Expert Witness Allowed to Calculate the Plaintiff’s Decreased Earning Capacity

    Economics Expert Witness Allowed to Calculate the Plaintiff’s Decreased Earning Capacity

    This matter arises from an automobile accident in Valparaiso where one of the Plaintiffs, Terry Larson, sustained serious injury. His wife, Jayne, also seeks damages for a loss of consortium.

    Larson disclosed that he expected Stan Smith to testify “regarding the economic harm caused by the injuries that Plaintiff suffered as a result of the April 30, 2020 crash. Smith’s economic analysis addresses Plaintiff’s loss of income and loss of household services.” 

    In his August 2023 report, Smith listed two categories of expert testimony: (1) an estimate of Larson’s loss of wages and employee benefits and (2) an estimate of Larson’s loss of housekeeping and household management services.

    To reach these conclusions, Smith reviewed the following materials: (1) the individual tax returns for Terry and Jayne Larson from 2015 through 2022; (2) the S Corporation tax returns for Larson-Danielson Construction from 2015 through 2022; (3) the W-2s for Terry Larson from 2015 through 2022; (4) the Complaint; (5) Plaintiff, Terry Larson’s Answers to Defendants’ First Set of Interrogatories; (6) Plaintiff, Terry Larson’s Supplemental Answers to Defendants’ First Set of Interrogatories; (7) Plaintiff, Jayne Larson’s Answers to Defendants’ First Set of Interrogatories; (8) the deposition of Terry Larson taken on August 31, 2021; (9) an informational interview with Terry Larson dated September 10, 2021; and (10) the case information form.

    Defendants challenged the methodology of Smith’s opinions and alleged that they lack foundation in sufficient facts and data.

    Economics Expert Witness

    Stan Vladimir Smith, Ph.D. is a nationally renowned economist who received his Ph.D. from the University of Chicago. He is President of Smith Economics Group, Ltd., headquartered in Chicago, IL, which provides economic and financial consulting nationwide. He has worked as an economic and financial consultant since 1974, after completing a Research Internship at the Federal Reserve, Board of Governors, in Washington, D.C.

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

    Discussion by the Court

    Smith noted that he relied upon Larson’s statements concerning his employment history, future plans, and the effects of the accident on Larson’s ability to work. He added that Larson also had reported a shift from being a full-time, salaried employee to being a part-time, hourly employee by 2023.

    Methodology

    As far as methodology, Smith stated he relied upon data from the National Center for Health Statistics to estimate Larson’s remaining life expectancy. Smith then outlined his use of data from the Bureau of Labor Statistics and the Federal Reserve for “past wage growth, interest rates, and consumer prices” to generate an estimated real wage growth rate of 0.95% per year, real discount rate of 1.20% per year, and annual inflation rate of 2.51%.

    Smith also outlined his methodology for calculating Larson’s estimated loss of tangible housekeeping chores and household management services using Bureau of Labor Statistics data, information collected from the interviews of Larson, and practices recommended by economist Dr. Gerald Martin.

    Defendants’ Position

    Defendants argued that while Smith “may be qualified to offer testimony as to the amount of an alleged economic loss”, he lacked a sufficient factual basis or reliable methodology to testify that Larson “suffered an economic loss related to the April 30, 2020, automobile accident.” 

    Defendants also appeared to argue that because Smith assumes that Larson is no longer able to work in a full-time capacity, his testimony is “nothing more than speculation as to when and why Larson will retire.” In further refinement of their argument, Defendants argued that Smith’s testimony lacks any evidence that Larson is “unable to continue working in his prior occupation.” 

    Analysis

    During his deposition, Smith acknowledged that he assumed the information Larson provided to him was accurate and incorporated that information into his report.

     Smith said it was up to “the trier of fact to give . . . whatever weight to [Larson’s statements] they believe is appropriate.” He also indicated the limited nature of his testimony as focused on calculating decreased earning capacity and not on the cause of that decrease in earning capacity (be it personal choice or the accident).

    That said, there were several instances in his deposition where Smith walked the line and appeared to opine on the cause of changes to Larson’s earning capacity. 

    To the extent that Smith acknowledges the statements made by Larson that he relied on for his calculations, the Court deemed it permissible. But the Court agreed with Defendants that Smith lacked the foundation to testify as to the truth of those assertions or that the accident in fact caused Larson’s reduced earning capacity. Those opinions are prohibited. 

    The Court concluded that Defendants’ arguments primarily concern the weight of Smith’s testimony, which are arguments best pitched not to the judge, but to the jury. Larson has established a sufficient basis for the admissibility of Smith’s testimony limited in scope to a calculation of Larson’s alleged economic loss. Smith may not testify as to causation because, as Defendants argue, he lacks sufficient foundation to do so.

    Held

    The Court denied the Defendant’s motion to exclude the testimony of Larson’s economic expert Stan Smith.

    Key Takeaway:

    In Defendants’ eyes, there is a missing connection between the data Smith relied upon (Larson’s allegations concerning his inability to continue working in the same capacity as before the accident) and Smith’s opinion (which calculates lost wages and earning capacity).

    Larson has established a sufficient basis for the admissibility of Smith’s testimony limited in scope to a calculation of Larson’s alleged economic loss. However, Smith may not testify as to causation because, he lacks sufficient foundation to do so.

    Case Details:

    Case Caption: Larson Et Al V. Davidson Trucking Inc Et Al
    Docket Number: 2:20cv250
    Court: United States District Court, Indiana Northern
    Order Date: December 02, 2024
  • Economics Expert Witness’ Estimate of ED Treatment Utilization Deemed Reliable

    Economics Expert Witness’ Estimate of ED Treatment Utilization Deemed Reliable

    Plaintiffs Molly C. and Naomi L. are beneficiaries of group health insurance plans administered by Defendant Oxford Health Insurance, Inc. (Oxford). Beginning in 2019, Plaintiffs were diagnosed with eating disorders, received outpatient nutritional counseling as part of their treatment, and submitted claims for that counseling to Oxford, which denied them on the ground that their plans did not cover  those services. Because Oxford did cover nutritional counseling for diabetes, Plaintiffs contended that its failure to do the same for eating disorders violated the Mental Health Parity and Addiction Equity Act (Parity Act).

    Plaintiffs sought to certify a class consisting of all persons who were covered under an Oxford group health insurance plan in New York, were diagnosed with one of five specified eating disorders (EDs), received outpatient nutritional counseling from November 30, 2015 to the present (the Class Period), and either (a) submitted claims for that counseling, which Oxford denied on the ground that it was “not a covered benefit” (the Denied Claims Subclass), or (b) did not submit claims (the No Claims Subclass). In order to establish the required numerosity of each proposed subclass, Plaintiffs rely on two expert declarations from Frank Fox, Ph.D., who estimates — based on claims data supplied by Oxford — that during the Class Period at least 458 Oxford members with EDs submitted at least 1,461 claims for outpatient nutritional counseling that were denied because the treatment was “not a covered benefit.”

    Motion to Exclude

    Fox also opines that, during the same period, 1,300 to 1,795 Oxford members per year would have received nutritional counseling for their EDs, had it been a covered benefit, and that 513 to 709 Oxford members per year actually did receive such treatment.

    Oxford filed a motion to exclude Fox’s opinions pursuant to Fed. R. Evid. 702 and the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and its progeny.

    Economics Expert Witness

    Frank Fox is an economist, who has owned and operated his own consulting practice since 1996. He earned his Ph.D. in Economics from the University of Washington in 1977. He has extensive experience providing expert testimony estimating utilization and cost expenditures for various disease states.

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

    Discussion by the Court

    In his initial declaration, Fox (i) estimates the number of Oxford members in New York who received nutritional counseling for EDs between November 30, 2015 and the present (the Study Period); (ii) analyzes the claims data produced by Oxford (OXF0032564) to independently determine the number of claims for such counseling that were submitted over the Study Period, as well as those that were denied on the ground that the services were not covered; and (iii) compares the two sets of figures, offering a hypothesis as to the difference.

    In his supplemental declaration, Fox defends his analysis against Michael J.  Petron’s challenges. He disagreed with Petron’s definition of an “allowed” claim, calling it “overly expansive.” Even using that expansive definition, Fox counts 413 unique members whose nutritional counseling claims for EDs were denied before Oxford’s 2021 reconfiguration, and estimates that there were 430 (still well above the numerosity threshold) across the entire Study Period. Fox also “disagree[s] with Petron’s conclusion that it is not possible to estimate the population of individuals within the proposed Class from the provided Claims Data.” He argued that Petron’s “conjectured hypothetical” that some nutritional counseling claims might have been denied for other reasons is “meaningless,” because, by definition, a member with an ED whose claim was denied for lack of coverage meets the criteria for inclusion in the class.

    Lastly (as relevant here), Fox agreed that his utilization estimates for nutritional counseling are based on “statistics with degrees of uncertainty,” but defended his conclusions as “reliable and reasonable” in light of available data.

    In their class certification papers, Plaintiffs relied on Fox’s work to show that both the Denied Claims Subclass and No Claims Subclass were sufficiently numerous to permit certification.

    Reliability

    Oxford challenged the reliability of Fox’s opinions on several different grounds.

    Rule 26(a)(1)(B)

    During his deposition, Fox drew a distinction between a declaration and an expert report. He explained that his initial declaration (at 14 pages, not including his CV and list of prior testimony) “was intended to be succinct,”  whereas, in his experience, expert reports are longer, “more like 40 to 80 pages,” “much more in depth, [with] much more support, much more analysis, much more exploration of why I reached the conclusions I did, more quantitative, more qualitative.” From this testimony, Oxford concluded that Fox has “admitted” that neither of his declarations is an expert report “as required by the Federal Rules of Civil Procedure,” and has “fully acknowledged” that his testimony “does not even come close to meeting the exacting standard for reliable testimony.”

    The Court held that Fox’s declarations satisfy this standard. Although Oxford argued that Fox failed to “test certain assumptions,” failed to “comprehensively analyze the studies he relied upon,” and failed to “document his assessment” of those studies, these critiques go to the quality of his analysis, not his compliance with Rule 26(a)(2)(b).

    Insufficient Data

    Oxford argued that Fox’s estimates are unreliable because he had insufficient data to “validate his assumptions.”

    Specifically, Oxford asserted, Fox failed to validate his “assumption that the age and sex mix of Oxford’s ERISA plan members is comparable to that of the entire state [of] New York,” because he “didn’t have the data.” But Oxford — which does have the data — offers no reason to believe that the age and sex mix of its covered population in New York differs in any material respect from the age and sex mix of all New York residents.

    Oxford also faults Fox for relying on the 2019 Ward Study for his estimates of “one-year treatment rates by condition,” without “validating his assumptions.” At deposition, Fox explained that “he did not have any ‘better data than the originators of the study.” 

    According to Oxford, this rendered Fox’s opinions “unreliable and subject to exclusion.” The Court noted that Defendant presented no inconsistent data or contradictory research. Nor does it suggest that experts in Fox’s field cannot “reasonably rely” on prior academic research such as the Ward Study to construct healthcare utilization models. 

    The courts draw a distinction between insufficient data and imperfect data. If a proposed expert lacks the basic information required by professionals in his field to form an opinion, his testimony will be excluded.

    The Court held that Defendant has failed to show either that Fox’s opinions were based on “insufficient data,” in violation of Rule 702, or that he relied upon facts or data beyond those that experts in his field “would reasonably rely on,” in violation of Rule 703.

     Unrepresentative Studies

    Lastly, Oxford contended that the studies upon which Fox relied rendered his opinions unreliable because they were too old, not specific to New York, or “cherry-picked” to support Fox’s conclusions. For example, Oxford questioned Fox’s reliance on the “first nationally representative study of eating disorders in the United States,” because he “did not perform any analysis to confirm that this data was representative of recent nutritional counseling rates in New York for eating disorders.” But Fox did not rely on the Hudson Study to determine “recent nutritional counseling rates in New York.” He relied on it (in part) to determine overall “treatment rates” for EDs. And Oxford offered no reason to believe that overall ED treatment rates in the State of New York are materially different from those in the rest of the country.

    The research that Fox actually relied on for his “low estimate” (that 24% of the Oxford members in New York who were in treatment for their EDs received nutritional counseling as part of their treatment) was the Yager Survey, published in 1989, based on a survey of 641 American women with eating disorders. Oxford characterizes that data as “outdated” and argues that it “cannot be used to reliably forecast current eating disorder treatment trends.”

    The Court held that although Oxford might have raised questions about some of the assumptions made by Fox, it has not shown that his reliance on the Ward Study, the Hudson Study, or the Yager Survey is “so ‘speculative,’ ‘conjectural,’ or ‘unrealistic and contradictory’ that they render his estimate of [ED treatment utilization] fundamentally unreliable.”

    Held

    The Court denied the Defendant’s motion to exclude Frank Fox’s opinions.

    Key Takeaways:

    • An expert need not base his or her opinion on the best possible evidence, regardless of availability, but upon good grounds, based on what is known.
    • Imperfect data goes to the weight of the expert’s opinion, not its admissibility, and is not grounds for exclusion. 

    Case Details:

    Case Caption: Molly C. Et Al V. Oxford Health Insurance, Inc.
    Docket Number: 1:21cv10144
    Court: United States District Court, New York Southern
    Order Date: November 21, 2024