An individual who has special training, skill, experiences, or knowledge so as to be qualified to render an authoritative opinion in a particular area of scientific, technical, or professional expertise.
Copyright © International Risk Management Institute, Inc. (IRMI)
In Tactical Stop-Loss LLC v. Travelers Casualty & Surety Co. of America, 2010 U.S. Dist. LEXIS 8304 (W.D. Mo. Feb. 2, 2010), the United States District Court for the Western District of Missouri granted an insurer’s motion to strike the expert testimony of the former director of the Missouri Department of Insurance on the grounds that the expert’s testimony failed to satisfy the requirements set forth under the Federal Rules of Evidence and Civil Procedure.
In this case, Plaintiffs Tactical Stop-Loss LLC, (“Tactical”) TSL Holdings Inc. and American Trust Administrators (“ATA”) (collectively, the “Plaintiffs”) alleged that the former president of Tactical and ATA diverted large amounts of money into personal bank accounts and other improper accounts. Plaintiffs also alleged that their vice president and chief operating ofﬁcer acted in collusion with the former president to illegally divert Plaintiffs’ funds. Plaintiffs sought coverage for their losses under a crime insurance policy purchased from Defendant Travelers Casualty and Surety Company of America (“Travelers”) which purportedly provided coverage for employee theft and ERISA ﬁdelity theft. However, Travelers denied coverage and Plaintiffs subsequently ﬁled suit against Travelers.
This decision principally concerned the expert testimony of Scott Lakin, the former director of the Missouri Department of Insurance. Travelers ﬁ led a motion to strike the expert’s testimony on the grounds that, among other things, the report failed to comply with Federal Rule of Civil Procedure 26(a)(2)(B)(iv) because it did not contain “a list of all publications authored in the previous 10 years.” In response, Plaintiffs argued that Mr. Lakin did provide a general description of his publications that were published during his tenure as director of the Missouri Department of Insurance and that the report did in fact comply “with Rule 26 because it put defendant on notice that Mr. Lakin has published ‘op-ed’ articles on insurance issues during his time as director, and the absence of speciﬁcity is substantially justiﬁed and harmless to defendant.”
The court, however, disagreed with Plaintiffs and concluded that Plaintiffs’ expert report must be stricken because it failed to meet the requirements set forth under Rule 26(a)(2)(B). Speciﬁcally, the court held that “[P]laintiffs provide no case law or other authority supporting the position that just because someone has published often, it is impossible to prepare a list of published works. . . .” The court further reasoned that once notiﬁed of the defect, Plaintiffs failed to cure the problem with the expert report and as such, Travelers’ motion to strike Mr. Lakin’s testimony was granted.
Travelers alternatively argued that Mr. Lakin lacked the requisite knowledge, skill, experience, training, or education to offer his opinions pursuant to Rule 702 of the Federal Rules of Evidence. The court noted that “[t]he proponent of expert evidence must show by a preponderance of the evidence that the expert is qualiﬁed to render his opinion and the methodology underlying his conclusions is valid. Citing Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 75758 (8th Cir. 2006). Plaintiffs argued that as director of the Missouri Department of Insurance, “Mr. Lakin developed an expertise in critiquing insurance claims handling and identifying wrongful denials.” Travelers argued, however, that Plaintiffs failed to refute the fact that neither the expert report nor Mr. Lakin’s curriculum vitae revealed any experience in handling insurance claims generally, or in handling ﬁdelity claims. As a result, the court concluded that Mr. Lakin’s expert report should be stricken because Plaintiffs failed to demonstrate that Mr. Lakin had the knowledge, skill, experience, training, or education to render his opinions, both as to claims handling and as to coverage under the policy.
Finally, Travelers argued that Mr. Lakin’s opinion as to whether there was any coverage for the underlying claim did not comply with Federal Rule of Evidence 702 because it was not based on sufﬁ cient facts or data, was not the product of reliable principles and methods, and there was no way to know whether Mr. Lakin applied the principles and methods to the facts of the case. The court agreed. Speciﬁ cally, the court held that Mr. Lakin “made a bald conclusion on an ultimate issue in this case, without performing any intervening analysis to why this claim ought to have been paid.” The court explained that a proper expert opinion would have cited to sections of the policy that would apply to the Plaintiffs’ claims and then would have applied those pertinent policy provisions to the facts of the case. Mr. Lakin, however, without citing to any speciﬁc policy provisions, simply testiﬁ ed that he believed “that the Missouri Department of Insurance would have strongly encouraged Travelers to pay the claim based on the fact that [the vice president] did not have an ownership interest in the company. . . .” The court found this “bald conclusion” to be insufﬁcient under the Federal Rules and thus, granted Traveler’s motion to strike on this alternative basis as well.
This case was a clear win for Travelers as the insureds’ expert testimony was stricken because the expert lacked the requisite knowledge, experience and training necessary to offer his opinion as to coverage for the claim and because he failed to provide any basis for his opinion. This case also serves as a warning to both carriers and insureds that experts in coverage disputes will be expected to include citations to pertinent policy provisions and then apply those policy provisions to the facts of the case. It is also interesting that, according to the court, it was not enough that the expert served as the director of Missouri’s Department of Insurance; rather, the court required experience and knowledge in both claims handling and the type of policy at issue.
This decision is further heartening to insurers because the Court did not merely leave it to the ultimate ﬁnder of fact to weigh the credibility of the expert’s testimony, but instead struck his testimony entirely.
Prepared by Monica C. Mendes, an associate in our Los Angeles office.