This civil action arises from a motor vehicle accident involving Plaintiff Sarah Kollman on February 20, 2019. The other driver, Taylor Bonello, was at-fault for the collision, which Plaintiff alleged caused her physical injuries.
At the time of the collision, Bonello was insured for liability with Progressive Insurance company for $100,000.000. Plaintiff had an underinsured motorist (UIM) policy with Defendant State Farm Mutual Automobile Insurance Company. After receiving permission from Defendant, Plaintiff settled with Bonello for the $100,000.000 policy limit. Plaintiff then demanded the full UIM limits of $100,000.000 from Defendant under her policy. Defendant refused to pay, saying that all of Plaintiff’s damages were covered by the money she received from Progressive. In response, Plaintiff brought the instant lawsuit for breach of contract and breach of implied duty of good faith and fair dealing.
Plaintiff sought to limit the opinions and testimony of two of Defendant’s proposed expert witnesses, Dr. Haley Burke and Keith Olivera while Defendant sought to limit the testimony of Plaintiff’s proposed expert Jeremy A. Sitcoff.
Neurology Expert Witness
Haley A. Burke is board-certified in neurology, psychiatry and interventional pain management. Burke has first-hand experience and training working with breast cancer patients who had similar surgeries from when she studied at Anderson Cancer Center in Houston, Texas.
Insurance Expert Witnesses
Keith R. Olivera is an attorney duly licensed to practice law in Colorado who has practiced in excess of 30 years in various fields of insurance, including good faith/bad faith law. He is an expert in the fields of civil litigation and insurance industry standards.
Jeremy Andrew Sitcoff has been licensed to practice law in Colorado for over twenty-seven years. For more than twenty-two years approximately 85% of my practice has been devoted to insurance coverage, claims handling practices and procedures, and insurance breach of contract and bad faith on behalf of policyholders.
Discussion by the Court
A. Haley Burke, MD
Plaintiff argued that Burke, who is certified in neurology, psychiatry, and pain management, is not qualified to make opinions regarding the Traffic Accident Report or Plaintiff’s lumpectomies and breast reconstructive surgery, Lyme disease, sinus and eye surgery, mental health, dental health, shoulder pain, and gastrointestinal issues.
1. Burke’s qualifications
Burke did not render an opinion regarding the Traffic Accident Report; she merely reiterated how the State of Colorado defines an “01” severity for an injury. The Court cannot identify where in Burke’s report Plaintiff claimed that she stated an opinion on the Traffic Accident Report. In addition, Burke’s discussion of PTSD is included as part of a summary of another provider’s neurocognitive testing of Plaintiff. As none of these comments involve Burke’s own opinions or “scientific, technical, or other specialized knowledge,” they are not properly challenged under Rules 702 and 403.
Next, the fact that Burke did not cite any articles or provide a more detailed basis for her opinion that Plaintiff’s sinus and cataract surgery, mold exposure, fall, gluten intolerance, and Lyme disease potentially contributed to her symptoms did not necessarily make these opinions unreliable.
The Court found that Burke is qualified to opine on the possible effects of Plaintiff’s lumpectomies, breast reconstructive surgery, shoulder pain, and mental health. The Court also found that Burke is qualified to know that these “are major surgeries and would be expected to contribute to stress and pain for many people.”
Finally, Burke is also qualified and permitted to comment on the tests and practices employed by other providers who treated Plaintiff. As long as a subject is within an expert’s area of expertise, as is the case here, he or she may conclude whether he or she agrees with another’s data and opinions. Burke’s comments are not attacks on the other providers’ credibility but rather their substantive practices.
2. Burke’s Rebuttal Report
In contrast to Burke’s initial report, the rebuttal report is largely an attack on the credibility of Plaintiff’s experts. She specifically called into doubt the qualifications of Plaintiff’s experts and the believability of their testimony.
Therefore, the Court appropriately excluded portions of Burke’s rebuttal commenting on the qualifications of Plaintiff’s expert witnesses.
Other parts of the rebuttal report, such as the section discussing the records from Parker Vision Specialists, are appropriately limited to contradicting Plaintiff’s expert’s opinions and do not put forward new arguments or theories. Therefore, these portions of the report are admissible.
B. Keith Olivera
Plaintiff argued that several opinions of Defendant’s insurance expert, Olivera, should be excluded because he impermissibly drew legal conclusions, cited unreliable industry standards, and included irrelevant information.
1. Legal conclusions
Plaintiff cited 21 opinions that it argued are legal conclusions regarding the reasonableness of Defendant’s actions and complicity with industry standards.
The Court agreed that throughout Olivera’s report, he impermissibly conflated Colorado insurance industry standards with case law to draw conclusions about the reasonableness of Defendant’s actions.
Defendant stipulates to striking opinions 10, 11, 15, and 19. In addition, opinion 14 is not an application of either industry or legal standards to the facts of the case. While it is Olivera’s opinion that Burke’s testimony supported Defendant’s position, opinion 14 is not a conclusion regarding whether Defendant’s evaluation of or reliance on Burke’s report was in line with industry or legal standards. Therefore, the Court found Plaintiff’s argument is not applicable to opinion 14 and will not strike it.
Out of the remainder of the 21 opinions cited by Plaintiff in this section of their motion, opinions 4, 5, 6, 9, 12, 13, 16 are permissible testimony regarding Defendant’s conformity with industry standards, not legal standards. On the other hand, opinions 2, 8, 17, 18, 20 are impermissible conclusions regarding the reasonableness of Defendant’s conduct, which is a matter of law.
The Court also excluded opinions 1, 3, 7, and part of 21 because they are conclusions resulting from application of case law and statutory law to the facts of the case.
2. Support for industry standards
Plaintiff challenged 7 of Olivera’s opinions as based on industry standards that are not codified and have not been shown to be generally accepted. The Court disagreed, finding that at the beginning of his report, Olivera adequately stated a basis for the industry standards he cited.
In his report, Olivera “identifies what he perceives as the relevant insurance industry standards, explains those standards, and states that he relied on his experience in the insurance industry in forming his opinions as to whether State Farm met those standards.”
He clearly tied each of his opinions to an identified industry standard and stated the basis for that standard, citing Colorado case law, statutes, and his 40 years of experience in the insurance industry. Therefore, the Court found that the seven challenged opinions are not unsupported ipse dixit statements but are instead based on clearly articulated sources.
3. Ties to factual observations
Plaintiff argued that Olivera’s report failed to connect the case law and standards cited in pages 6-7 of his report to the facts of this case.
As discussed above, Olivera may not directly opine on whether Defendant’s conduct was unlawful under the case law and statutes cited. However, courts in this district have noted that case law and statutes inform insurance industry standards, and experts are permitted to testify whether a Defendant’s conduct “conformed with specific industry standards, including ones identified in Colorado statutes.”
Therefore, Olivera cannot tie the case law and statutes in pages 6-7 of his report directly to the facts of the case. However, as Olivera used the law and statutes to provide a basis for the industry standards he applied throughout his opinion, his discussion of them is admissible.
4. Methodology and supporting facts
Plaintiff argued that Olivera failed to provide any methodology or supporting facts for two of his opinions. However, Plaintiff’s argument reads not as a challenge to Olivera’s methodology but rather as a rehash of her argument that Olivera did not provide a basis for the industry standards cited. The Court has already discussed that Olivera provided sufficient bases for the industry standards he applied. To the extent Plaintiff disagreed with Olivera’s conclusion that it was consistent with industry standards for Defendant to consider Burke’s IME report, she may address her disagreement through cross-examination at trial.
5. Rebuttal Opinion
Plaintiff objected to Olivera’s rebuttal statement that he disagreed with Sitcoff’s “discussion of the case law, statutes, and regulations that provide Colorado insurance industry standards” to the extent it is inconsistent with his own.
Plaintiff argued that it is unclear what Olivera specifically opposes. Olivera’s general statement of disagreement is supported by the lengthy discussion of case law, statutes, and regulations included in his initial report and to which he refers to as the basis for his disagreement in the rebuttal. He did not seek to introduce new facts or information to support his disagreement. Therefore, the Court found that Plaintiff is adequately on notice for the basis upon which Olivera disagreed with any of Sitcoff’s contrasting opinions.
C. Jeremy Sitcoff
Defendant argued that eight of Sitcoff’s opinions are not supported by any referenced industry standard and that he impermissibly drew legal conclusions from applying the law to the facts of the case.
The Court excluded Opinions 2, 5, 6, and 7 as impermissible legal conclusions because they commented on the reasonableness of Defendant’s investigation, which was a legal determination reserved for the jury. In contrast, the Court held that Opinions 3, 4, and 8 drew conclusions based on industry standards rather than legal standards and were therefore admissible.
Held
- The Court granted in part and denied in part Plaintiff’s motion to limit the testimony of Defendant’s retained expert Haley Burke.
- The Court granted in part and denied in part Plaintiff’s motion to limit the testimony of Defendant’s insurance industry expert Keith Olivera.
- The Court granted in part and denied in part Defendant’s motion to exclude the opinions of Jeremy Sitcoff.
Key Takeaway
Physicians frequently rely on medical knowledge, physical examination, and patient history to form opinions, all of which are “routinely admitted in federal courts because this methodology is widely accepted among the relevant scientific community.”
Case Details:
| Case Caption: | Kollmann V. State Farm Mutual Automobile Insurance Company |
| Docket Number: | 1:23cv2802 |
| Court Name: | United States District Court, Colorado |
| Order Date: | April 23, 2026 |
