Strategies for Excluding or Limiting Plaintiffs' Bad Faith Experts.

• Author: Morrissette, Henry T.

PLAINTIFF'S counsel will frequently attempt to use a "bad faith expert" to bolster a claim that an insurer acted in bad faith in an attempt to survive a Motion for Summary Judgment and to present their case to the jury. Often, such an expert simply acts as another advocate for the plaintiff to the judge and ultimately to the jury. This paper will address strategies and arguments for excluding experts who lack sufficient expertise; are not helpful to the jury; present irrelevant and prejudicial information; lack a sufficient basis for their assertions; and/or improperly tell the jurors what result they should reach. This article is intended to present defense counsel with legal arguments and strategies for excluding or limiting the testimony of plaintiff's bad faith expert and will primarily rely on federal authorities and the Federal Rules of Evidence. Please note, however, that courts' acceptance of bad faith experts and the elements of bad faith vary by state and in the various federal courts across the country.

1. Applicable Standard for Admissibility of Expert Testimony

   Expert testimony is only admissible under the Federal Rules of Evidence if the expert's opinions are reliable, relevant, and helpful to the trier of fact. (1) Under FEDERAL RULE OF EVIDENCE 702, relevant expert testimony is admissible only if the trial court finds that: (1) the expert is qualified to testify about the matters he intends to address; (2) the methodology employed by the expert to reach his conclusions is sufficiently reliable; and (3) the expert's testimony will assist the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or determine a fact in issue. (2) The proponent of the expert witness bears the burden of establishing that the expert's testimony satisfies the qualification, reliability, and helpfulness requirements. (3) The following sections evaluate the presentation of bad faith expert testimony according to this standard.

2. The Witness Must Be Qualified

   The first step in addressing plaintiff's attempt to present expert testimony on bad faith is to address the qualifications of the witness. In keeping with the above admissibility standard, "opinion testimony proffered by an expert witness must be excluded unless the party proffering the witness proves, by a preponderance of the evidence, that the witness is qualified, and that his testimony is both reliable and helpful." (4)

   Defense counsel should fully explore the qualifications of the proposed expert to provide testimony on the specific issues which he or she is expected to testify. For example, plaintiff's counsel will sometimes attempt to use a local lawyer who specializes in insurance cases as a bad faith expert. While local lawyers may have extensive experience litigating insurance claims, they often lack claims handling experience or other experience relevant to the specific issues in the case. Since expert testimony is not allowed on legal issues or on policy construction, defense counsel can establish through deposition testimony and/or other evidentiary means that the witness is not qualified to testify as to the matter at issue in the case.

   Furthermore, deposition questioning can be used to specifically delineate the expert's experience to demonstrate that the expert does not have specific experience with the subject-matter at issue, for example, when the lawyer has substantial experience in the property and casualty arena, but attempts to testify as a bad faith expert on a disability insurance claim. In addressing an expert's qualifications based on experience, courts have been careful to note that general experience or experience in a related area is not sufficient to qualify the expert to testify in another specialized area. (5)

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