When there is $1 billion involved in a Superstorm Sandy insurance coverage battle, you can bet your bottom dollar there is going to be some gamesmanship in court by the insurance carriers with skin in the game. This has proven true in a New York federal case involving Amtrak and a list of insurance carriers in a coverage case with damages claimed in excess of $1 billion.1
Knocking out a party’s experts is a common litigation strategy, and that is what has recently occurred in the case. The insurers have asked the trial court exclude expert testimony and reports related to rail damage in the massive damage case.2 So, the insurers have experts that say the rails were not damaged by Superstorm Sandy and Amtrak seeks to have rebuttal expert reports and testimony discussing how the rails were damaged during Sandy.
Amtrak’s position is that the rebuttal reports point out inconsistencies in the insurers’ expert recommendations that submerged metal substances and electrical equipment be replaced but not submerged rail or the third rail carrying an electric current. Amtrak had asserted in support of its position:
If, at trial, defendants present expert testimony to show that rail has not been damaged and does not need to be replaced, then Amtrak should be allowed to present expert testimony to rebut this position. There is no place for gamesmanship in resolving this important issue of public safety.
When I read the article about this I was surprised since this is the exact purpose of rebuttal experts at trial—to contradict, impeach, or defuse the impact of the evidence offered by the other party. I guess when there is such a huge chunk of change at stake, the gamesmanship is heightened. More Money, More Problems!
1 National Railroad Passenger Corp. v. Arch Specialty Ins. Co. et al, No. 1:14-cv-07510 (S.D.N.Y. 2014).
2 Jeff Sistrunk, Amtrak Fights For Experts In $1B Sandy Coverage Suit, Law360, May 29, 2015 (sub. req.).