{"id":1788,"date":"2019-10-15T16:22:35","date_gmt":"2019-10-15T16:22:35","guid":{"rendered":"https:\/\/amgpreview.com\/dllawgroup\/?p=1788"},"modified":"2026-06-01T17:45:08","modified_gmt":"2026-06-01T17:45:08","slug":"do-you-need-an-expert-to-prove-bad-faith","status":"publish","type":"post","link":"https:\/\/amgpreview.com\/dllawgroup\/do-you-need-an-expert-to-prove-bad-faith\/","title":{"rendered":"Do You Need An Expert To Prove Bad Faith?"},"content":{"rendered":"

In a bad faith case, use of an \u201cinsurance\u201d expert can be discretionary. Numerous cases have held that it is not necessary to use an expert to prove bad faith. For example, in DeChant v. Monarch Life Insurance Company, (1996) 200 Wis. 2d 559, the court opined that the insured was not required to introduce expert testimony to prove a cause of action in tort for bad faith refusal to pay full disability benefits under the insurance policy, where allegations of bad faith did not implicate complex industry practices or procedures and jurors did not need special knowledge, skill or experience to properly understand and analyze the insurer\u2019s conduct. Similarly, in Weiss v. United fire and Casualty Company, (1995) 197 Wis.2d 365, the court held that when an insurer\u2019s alleged breach of its duty of good faith and fair dealing toward its insured involves facts and circumstances within the common knowledge of ordinary experience of average juror, the insured is not required to produce expert testimony in order to prevail on a bad faith claim. Remember, however, these cases were decided pursuant to the insurer\u2019s attempt to claim that the jury\u2019s determination that the insurer had acted in bad faith could not be supported because the plaintiff had not introduced expert testimony.<\/p>\n

<\/div>\n
Depending on the facts of the case, it may be enough to simply cross examine the insurance company witnesses as to the standards that a reasonable insurer must apply when adjusting a claim. This was exactly what was done in the case of McGregor v. Paul Revere, Case No. C-97-2938, 2004 U.S. App. Lexis 730. Although plaintiff did not use a bad faith expert, her attorneys cross examined defendants\u2019 witnesses on the standards of the industry and the definitions of disability In an unpublished decision handed down by the Ninth Circuit on January 15, 2004, the court affirmed McGregor\u2019s $1.2 million federal jury award for bad faith denial of her disability benefits. The Court also affirmed an emotional distress award of $616,000 based on the same bad faith conduct.<\/div>\n
<\/div>\n
If, after consideration of such things as the costs and the complexities of the case, the attorney does decide to use a bad faith expert, the next question that should be addressed is \u201chow\u201d and \u201cwhen\u201d. In many instances, attorneys decide that the plaintiff is the best witness to tell the story and will then use an expert to comment on claims handling only after all the evidence has been presented. However, when you are attempting to prove pattern and practice, it can often be very effective to put your bad faith expert on as the first witness. The expert can then draw the large picture or the road map for the jury. The individual witness testimony, including the insured and the company\u2019s own employees, is then presented against the backdrop of institutional wrong that the expert has painted. Since an expert can rely on inadmissible evidence in forming an opinion, this can also be an effective way to get information before a jury that would otherwise be excluded as inadmissible hearsay.<\/div>\n
<\/div>\n
E. Requirements for Admissibility of Expert Testimony<\/b><\/span><\/div>\n
California :<\/b><\/div>\n
Under Evidence Code \u00a7801 there are three basic requirements for the admissibility of expert opinion testimony:<\/div>\n
\n
    \n
  • The subject matter of the expert\u2019s testimony must be sufficiently beyond the common experience of the average person such that the opinion could assist the jury and\/or Judge.<\/li>\n
  • The witness must have sufficient knowledge, skill, experience, training or education to qualify as an expert on the subject and<\/li>\n
  • The opinion must be based on reliable matters.<\/li>\n<\/ul>\n<\/div>\n
    <\/div>\n
    Expert opinion is not permitted when the subject matter is \u201cone of common experience\u201d upon which jurors do not need assistance in arriving at a conclusion. Godfred v. Steinpress (1982) 128 Cal.App.3d 154. Obviously, this is an area where parties often file competing motions in limine to keep the other side\u2019s expert out.<\/div>\n
    <\/div>\n
    Expert opinion is not allowed where the issue is a matter of law. In bad faith cases, it is imperative to remember that your expert cannot testify about whether or not the insurance company acted in \u201cbad faith\u201d or whether a punitive damage award is proper. These are legal issues and such testimony will be excluded. However, the expert may testify that a particular insurer\u2019s practices fall below the standard of care or the custom and practice of the industry.<\/div>\n
    <\/div>\n
    The California Supreme Court has allowed expert testimony on \u201cthe conduct and motives of an insurance company in denying coverage\u201d.<\/div>\n
    <\/div>\n
    We can conceive of many ways in which a lay jury, in assessing the conduct and motives of an insurance company in denying coverage under this policy, could benefit from the opinion of one who by profession and experience, was peculiarly equipped to evaluate such matters in the context of similar disputes.<\/div>\n
    <\/div>\n
    Neal v. Farmers Ins. Exch., (1978) 21 Cal.3d 910,924.<\/b><\/div>\n
    In addition, there are bad faith cases in which expert testimony is required. For instance, in a bad faith case where the plaintiff is asking for accelerated damages pursuant to Egan v. Mutual of Omaha (1979) 24 Cal.3d 809; and Pistorius v. Prudential Ins. Co. of Am. 123 Cal.App.3d 541, it is imperative to have a financial expert who can testify as to the present value of future policy benefits. Here the predictable fight is over the discount rate to be used to determine the value as well as the Cost of Living increase if one is contained in the policy. In addition, if the trier of fact decides to award punitive damages, it is plaintiff\u2019s burden to present proof of the net worth of the defendant. Here again it is necessary to present expert testimony.<\/div>\n
    <\/div>\n
    Unless the parties agree otherwise, there is no requirement that the expert create a written version of the opinion he\/she intends to offer at trial.<\/div>\n
    <\/div>\n
    Federal:<\/b><\/div>\n
    Under the Federal Rules of Evidence, the admissibility of expert opinion testimony generally turns on preliminary questions of law determinations by the trial judge of whether:<\/div>\n
    \n
      \n
    • opinion is based on scientific technical, or other specialized knowledge;<\/li>\n
    • opinion would assist the trier of fact in understanding evidence or a fact in issue;<\/li>\n
    • the expert has appropriate qualifications, that is, some special knowledge, skill, experience, training, or education on that subject matter;<\/li>\n
    • testimony is relevant and reliable;<\/li>\n
    • expert\u2019s methodology or technique fits the conclusions; and its probative value is substantially outweighed by the risk of unfair prejudice, confusion of issue, or undue consumption of time. (Fed. Rules Evid. Rules 104(a), 403,702,28 U.S.C.A. Even in diversity cases, the admissibility of expert testimony is controlled by Federal Law.<\/li>\n<\/ul>\n<\/div>\n
      Under the Federal Rules of Evidence, the trial judge is the \u201cgatekeeper\u201d of expert testimony. This means that it is up to the trial judge to ensure that an expert\u2019s testimony is both reliable and relevant. Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 US 579. In addressing the admissibility of \u201cscientific expert evidence, the Supreme Court, in Daubert, held that FRE 702 imposes a \u201cgatekeeping\u201d obligation on the trial judge to \u201censure that any and all scientific testimony . . . is not only relevant but reliable.\u201d 509 U.S. at 589.<\/div>\n
      <\/div>\n
      While maintaining that the trial court has substantial discretion in discharging its gatekeeping obligation, the Supreme Court suggested that in exercising its discretion, the trial court might consider: 1) whether a theory or technique can be tested; 2) whether it has been subjected to peer review and publication; 3) the known or potential error rate of the theory or technique; and 4) whether the theory or technique enjoys general acceptance within the relevant scientific community. Id. at 592-594.<\/div>\n
      <\/div>\n
      In Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), the Supreme Court further clarified its intent that the trial court\u2019s gatekeeping function not be limited to \u201cscientific\u201d expert testimony, but applies to all expert testimony. However, Kumho Tire carefully emphasizes that trial judges are not required to mechanically apply the Daubert factors-or something like them-to both scientific and non-scientific testimony and are to be given broad discretion when discharging their gatekeeping functions. This latitude applies not only to the trial court\u2019s decision of whether or not to admit an expert\u2019s testimony but also to how the trial court tests an expert\u2019s reliability.<\/div>\n
      <\/div>\n
      A number of Ninth Circuit cases have held that Daubert does not apply to \u201cnon-scientific\u201d testimony at all. See United Stated v. Plunk, 153 F.3d 1011, 1017 (9 th cir. 1998); McKendall v. Crown Control Corp., 122 F.3d 803,806 (9 th Cir. 1997); United Stated v. Webb, 115 F.3d 711, 716 (9 th Cir. 1997). Because these cases predate the Supreme Court\u2019s holding in Kumho, they are not good law insofar as they draw a distinction between \u201cscientific\u201d and non-scientific\u201d testimony. \u201cHowever these cases are still good law to the extent that they permit the admission of expert testimony on the basis of the expert\u2019s \u2018knowledge, skill, experience, training, or education,\u2019 which is consistent with Kumho Tire.\u201d United States v. Hankey, 203 F.3d 1160, 1169 (9 th Cir. 2000).<\/div>\n
      <\/div>\n
      In Hankey, the Ninth Circuit upheld the admission of expert testimony by a gang member whose expertise was based on his personal experience of gangs. The court held that \u201c[t]he Daubert factors (peer review, publication, potential error rate, etc.) simply are not applicable to this kind of testimony, whose reliability depends heavily on the knowledge and experience of the expert, rather than the methodology or theory behind it.\u201d Id. at 1168.<\/div>\n
      <\/div>\n
      In Mukhtar v. Cal. State University, Hayward, 299 F.1053, 1064 (9 th Cir. 2002), amended 319 F.3d 1073 (9 th cir. 2003), the Ninth Circuit reiterated that \u201c[a] trial court not only has broad latitude in determining whether an expert\u2019s testimony is reliable, but also in deciding how to determine the testimony\u2019s reliability. [citations omitted] Indeed, a separate, pretrial hearing on reliability is not required.\u201d<\/div>\n
      <\/div>\n
      Plaintiffs can expect that in every bad faith case in which they plan to use an expert, defendants will work mightily to disqualify that expert on the basis of Daubert. This was one of the issues on appeal in Greenberg v. Paul Revere, UnumProvident, et al. D.C. No. CV-99-00154-SRB. There defendants contended that the district court had committed reversible error when it admitted the testimony of Greenberg\u2019s insurance industry expert. In an unpublished decision issued on January 12, 2004, the court upheld a punitive damage award of $2.4 million and held that \u201cthe district court did not abuse its discretion in admitting the testimony of Greenberg\u2019s industry expert, Donald Kelley. Contrary to Paul Revere\u2019s contention, the district court was not required to assess Kelley\u2019s testimony against the factors articulated in Daubert v. Merrell Dow Pharm., Inc., 113 S. Ct. 2786 (1993)-peer review, publication, error rates, etc.-where it was the \u2018kind of testimony, whose reliability depends heavily on the knowledge and experience of the expert, rather than the methodology or theory behind it.’\u201d<\/div>\n
      <\/div>\n
      Keep in mind that although prohibited from commenting on the law or drawing legal conclusions, a bad faith expert may reasonably rely on the application of statutes in determining the reasonableness of a company\u2019s actions. Kraeger v.<\/div>\n
      <\/div>\n
      Nationwide Mut. Ins. Company, 1997 WL 109582 (E.D. Pa. 1997). Moreover, it is considered reasonable for experts in bad faith insurance practices to look to the relevant statutory and regulatory requirements in examining the reasonableness of an insurer\u2019s actions. Id. at *2. See also Hangarter v. Paul Revere, UnumProvident, et al. (2002) 236 F. Supp.2d 1069.<\/div>\n
      <\/div>\n
      The issue of the reliability of the experts\u2019 opinion and the Court\u2019s gate keeping role as well as other aspects of the Hangarter case is now on appeal. The question of the admissibility of plaintiff\u2019s bad faith expert took front and center at the oral argument held on February 10, 2004. At the time of the writing of this paper the court has not reached a decision. When the decision is handed down, plaintiff\u2019s attorneys expect that it will go a long way in clarifying what hurdles a plaintiff\u2019s bad faith expert must pass for the admission of his or her expert testimony.<\/div>\n
      <\/div>\n
      In McGregor, supra, it was plaintiff\u2019s treating expert hand surgeon, not a bad faith expert, whose testimony was challenged through invocation of Daubert and its progeny. Defendants tried on at least three separate occasions to exclude plaintiff\u2019s physician claiming, among other things, that his methods were unreliable and unusual. In upholding the jury\u2019s verdict as well as the trial court\u2019s rulings on the post trial motions, the Appellate Court held that the trial court had not abdicated her gatekeeping role in admitting the testimony of the expert. In addition, the Appellate Court stated: \u201cWe also conclude that the trial court did not abuse its discretion by finding that cross-examination was the proper vehicle for addressing Paul Revere\u2019s attacks on [the experts] credibility. See Daubert,509 U.S. at 596 (\u201cgatekeeping\u201d role is no substitute for [v]igorous cross-examination.\u201d).\u201d<\/div>\n
      <\/div>\n
      Conclusion<\/b><\/span><\/div>\n
      In an insurance bad faith case, an unreasonable denial can be proven by the individual claim\u2019s file itself. Establishing a corporate pattern and practice of conduct, however, is essential to obtaining substantial punitive damages. Expert testimony can often provide compelling evidence of the nexus between the conduct exhibited in your case and a corporate culture that encouraged the kind of conduct that resulted in your client\u2019s denial of coverage. Because the expert can rely on documents that may not actually be admitted, the expert\u2019s opinion can provide the passkey that unlocks the puzzle of the insurance company\u2019s intentional bad acts and makes a punitive damage award possible.<\/div>\n","protected":false},"excerpt":{"rendered":"

      In a bad faith case, use of an \u201cinsurance\u201d expert can be discretionary. Numerous cases have held that it is not necessary to use an expert to prove bad faith. For example, in DeChant v. Monarch Life Insurance Company, (1996) 200 Wis. 2d 559, the court opined that the insured was not required to introduce […]<\/p>\n","protected":false},"author":1,"featured_media":1804,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-1788","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-uncategorized"],"yoast_head":"\nDo You Need An Expert To Prove Bad Faith? - DL Law Group<\/title>\n<meta name=\"description\" content=\"In a bad faith case, use of an \u201cinsurance\u201d expert can be discretionary. 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