Insurance Claims And Using An Expert

Insurance lawyers find it helpful, in the right case, to use an expert.  What is important to understand is the criteria courts look at to determine whether someone qualifies as an expert.  This issue is discussed in a 2022 opinion from the Western District of Texas, San Antonio Division.  The opinion is styled, Craig Janssen v. Allstate Vehicle & Property Insurance Company.

This case arises out of a hail and wind storm event alleged to have caused damage to Plaintiff’s property.

Allstate filed a Daubert Motion to Exclude and/or Limit Testimony of Plaintiff’s Designated Expert.  This motion seeks to exclude the proposed testimony of Plaintiff’s designated handling expert, Gary Johnson.

Johnson, who is an appraiser and licensed adjuster, was designated to provide expert testimony concerning the claims handling process of Plaintiff’s claims.

The case can be read to get the relevant facts.  A look at how the court looks at expert reports is what matters.

Allstate’s motion arises under the standards set forth in Rule 702 of the Federal Rules of
Evidence and Daubert v. Merrell Dow Pharmaceuticals
.  In Daubert, the Supreme Court held that trial judges must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.  Subsequent to Daubert, Rule 702 of the Federal Rules of Evidence was amended to provide that a witness “qualified as an expert . . . may testify . . . in the form of an opinion . . . if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.”  The Rule 702 and Daubert analysis applies to all proposed expert testimony, including nonscientific “technical analysis” and other “specialized knowledge.” When expert testimony is challenged under Daubert, the burden of proof rests
with the party seeking to present the expert testimony.

Under Daubert, expert testimony is admissible only if the proponent demonstrates that:
(1) the expert is qualified; (2) the evidence is relevant to the suit; and (3) the evidence is reliable.  Daubert sets forth four specific factors that the trial court should ordinarily apply when considering the reliability of scientific evidence: (1) whether the technique can or has been tested; (2) whether it has been subjected to peer review or publication; (3) whether there is a known or potential rate of error; and (4) whether the relevant scientific community generally accepts the technique.  This test of reliability, however, is “flexible,” and these factors “neither necessarily nor exclusively apply to all experts or in every case.”  Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.  The proponent need not prove that the expert’s testimony is correct, but she must prove by a preponderance of the evidence that the testimony is reliable.

Notwithstanding the testing of an expert’s qualification, reliability, and admissibility, “the rejection of expert testimony is the exception rather than the rule.”  Daubert did not work a “sea change over federal evidence law,” and “the trial court’s role as gatekeeper is not intended to serve as a replacement for the adversary system.”  “Vigorous crossexamination, presentation of contrary evidence, and careful instruction on burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.”

So, the above is how the courts are suppose to look at experts and their reports before the expert is allowed to testify in a case.

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