Insurance claim denial cases will sometimes need an expert. When this happens, an insurance lawyer needs to know what is required of an expert and how the courts look at experts. This issue is discussed in a 2022 opinion from the Western District of Texas, San Antonio Division. The opinion is styled, Laura Atkinson v. Meridian Security Insurance Company.
This case is an insurance dispute regarding a homeowners insurance policy. The policy holder, Plaintiff Atkinson, is alleged to have suffered hailstorm damage and her insurer is Defendant, Meridian. Plaintiff named an expert to testify about the improper claims handling by Meridian and Meridian moved to strike the expert.
Meridian first moves to strike the designation and testimony of Plaintiff’s retained expert Gary Johnson, arguing that Johnson’s opinions were not properly disclosed and fail to meet the reliability standards of Federal Rule of Evidence 702.
A witness “who is qualified as an expert by knowledge, skill, experience, training, or education may testify” if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the
facts of the case.
The Court acts as a “gatekeeper” to ensure that expert opinion testimony meets the standards of Federal Rule of Evidence 702. First, the Court must be assured that the proffered witness is qualified to testify by virtue of his knowledge, skill, experience, training, or education. If the expert is qualified, the Court must ensure that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand. The proponent of expert opinion testimony must prove by a preponderance of the evidence that the expert is qualified, that the testimony is relevant to an issue in the case, and that the proffered expert opinion testimony is reliable.
Further, a party must disclose to the other parties the identity of any witness it may use
at trial to present evidence under Federal Rule of Evidence 702. This includes disclosure of any expert witness, along with a written report prepared and signed by the witness, if the witness is one retained or specially employed to provide expert testimony. The written report must contain:
(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness’s qualifications, including a list of all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the case.
If the party fails to properly disclose an expert witness, they are not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless. To assess whether the party’s violation is harmless, the Court considers four factors: (1) the importance of the evidence; (2) the prejudice to the opposing party of including the evidence; (3) the possibility of curing such
prejudice by granting a continuance; and (4) the explanation for the party’s failure to disclose.
The Court then discussed what happened regarding this case and ruled. It is a good read for an attorney wanting to be comfortable with their handling of an expert.