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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 or a portion of the claim is definitively won by the moving party unless the court grants leave to fix the identified issue. Motions in limine and Daubert motions, however, concern what evidence is admissible at trial.
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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 held that evidence could be admitted in court only if “the thing from which the deduction is made” is “sufficiently established to have gained general acceptance in the particular field in which it belongs.” Thirty-nine other states and the federal government follow Daubert to determine whether expert witnesses may testify in court.
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In a time where expert reports are more the norm than the exception, it’s important to remember that a great expert report is only as good as the expert delivering it. Delivery here is being used in the sense of delivering a timely, well written report and verbally delivering a succinct explanation of the methodology used to reach the conclusions at a deposition.


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As promised yesterday in Wildfire and Smoke Claims – A Case Burning With Issues That Public Adjusters Should Study, today’s post will be the first study from the recent decision in Falcon v. State Farm Lloyds.1 The initial question is how long has the expert has been doing what he is asked to do. The fire in Falcon involved a September 2011 wildfire in Texas.


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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 based on “wear and tear” or the like. Insurers then attempt to designate these experts to give an opinion at trial—even if the expert never examined photos of the property before the loss, and failed to view the property relatively soon after the loss. These experts’ opinions may be based on speculation, and may be thrown out by the court based on a Shreck motion, described below.

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