Generally, in Florida, when there is a difference of opinions between each party’s expert, the jury gets to decide who’s right, not the judge. But there has been a trend by insurance companies in the first-party property context of taking their expert’s report before the judge and arguing, in essence, “our expert’s right, the insured’s is wrong, so find in favor of the insurance company as a matter of law.”
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Insurance companies hire all kinds of experts to help them for all kinds of reasons. The problem is that some experts are not honest and never try to find the truth. The other problem is some policyholders or their under-financed attorneys do not hire experts or very good experts.
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A recent case filed in the Western District of Texas highlights the importance of retaining experts to assist in evaluating the cause of loss early in the claim process. In White Lodging Services Corporation et al v. Liberty Mutual Fire Insurance Company,1 a hotel development and management company filed suit against Liberty Mutual over a collapse claim that arose during the construction of a hotel. The policyholder had a builders’ risk insurance policy issued by Liberty Mutual.
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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 Illinois, the decision to whether to admit expert testimony falls within the sound discretion of the trial court. A person will be allowed to testify as an expert witness if:

  1. His or her experience and qualifications afford him or her knowledge that is not common to laypersons, and
  2. his or her testimony will aid the trier of fact in reaching its conclusions.

There is no predetermined formula for how an expert acquires specialized knowledge or experience, and the expert can gain such through practical experience, scientific study, education, training, or research. Formal academic training or specific degrees are not required to qualify a person as an expert; practical experience in a field may serve just as well as to qualify him or her. An expert need only have knowledge and experience beyond that of an average citizen. The burden of establishing the qualifications of an expert witness is on the proponent of his or her testimony.1


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