Tag Archives: Daubert

Pretrial Motion Practice in Federal Court

This blog post will describe the difference between pre-trial case dispositive motions and motions that impact the admissibility of evidence at trial. I recounted in a previous post that (1) motions to dismiss and (2) motions for summary judgment are case dispositive motions. That means that if either party ultimately wins the motion, the claim … Continue Reading

Missouri’s New Expert Witness Standard

Missouri has adopted a new standard for expert witness testimony. The old standard was based upon a statute, while the new standard follows the Daubert1 standard. In Daubert, the United States Supreme Court held that the enactment of the Federal Rules of Evidence overturned the Frye2 standard which had been in place since 1923. Frye … Continue Reading

Prevent Insurance Defense Counsel From Presenting Junk Science To The Jury

In Colorado, insurance companies often deny claims based on exclusions for “wear and tear,” “repeated seepage and leakage,” or “failure to maintain.” Often insurance companies will hire experts to examine the property months or years after a loss, hoping the expert is willing to perform an outcome oriented examination—aimed at substantiating the insurance company’s denial … Continue Reading

Not all Experts are Created Equal

Claims between policyholders and their insurance companies can seem simple. I often hear, “My roof didn’t leak prior to the storm and now it does. How can the insurance company say it wasn’t a result of the storm?” Generally, when this is the case, the insurance company has hired an expert to opine about what … Continue Reading

Expert Witnesses Must Remember Three Steps: (1) Qualifications (2) Reliability, and (3) Helpfulness

Expert witnesses are crucial to support disputed insurance claims, especially when the claims involve extensive damage, as is often the case in hurricane claims. While the standards for expert witness testimony may differ between state and federal courts, all federal courts are bound by Federal Rule of Evidence 702 and the United States Supreme Court’s … Continue Reading

The Florida Legislature trying to replace Frye with Daubert

The Florida Legislature is currently in session and we are all anxiously waiting to see what changes are made to Florida’s insurance laws. But there is another important issue currently being considered that many non-lawyers are not aware of. This issue involves replacing Florida’s Frye test for the admissibility of expert witness testimony with the … Continue Reading

In Federal Court, Judges Act As Gatekeepers In Deciding Whether To Admit Expert Testimony

In a recent case before the U.S. District Court in Ft. Lauderdale, the Court had to decide whether a policyholder’s expert should be allowed to testify on certain issues in the trial of the case involving Hurricane Wilma damages. Clena Investments, Inc. v. XL Specialty Ins. Co., 2012 WL 266422 (S.D. Fla. January 30, 2012). … Continue Reading

Experts: Can You Survive A Daubert Challenge?

Property insurance claims litigation often requires hiring several experts. Policyholders may need to retain a construction cost expert and engineer to give opinions on property damage, a bad faith expert regarding claims handling practices, and an accountant regarding business income losses. Depending on the case, the list can quickly grow to include an architect, a … Continue Reading