ce
Go~►erage
Litigation.
G!E
Seminar
~1~~
~i#CS~3i4,
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F
,
~
Expert
Witnesses
—Can't
Live
With
`Em
—Can't
Live
Without
`Em.
Tips
On
The
Use
and
Misuse
Of
Experts
In
Bad
Faith
And
Coverage
Cases
THE
USE
AND
MISUSE
OF
EXPERT
TESTIMONY
IN
BAD
FAITH
ACTIONS
Jeffrey
Michael
Cohen
E.
Kelly
Bittick,
Jr.
CARLTON
FIELDS,
P.A.
Miami,
FL
Introduction
Modern
trials
are
frequently
battles
of
experts
hired
by
the
parties
to
advocate
their
respective
positions.
Bad
faith
actions
are
no
different.
The
plaintiff
2
and
the
insurer
will
both
beat
the
bushes
for
claims
handlers
or
attorneys
who
are
experienced
in
the
customs
and
practices
relating
to
the
insurance
claims
at
issue
in
the
case
and
who
are
willing
to
serve
as
persuaders
for
the
party
by
whom
they
were
retained.
Disputes
regarding
the
admissibility
of
this
expert
testimony
are
the
rule
rather
than
the
exception.
~
Jeffrey
Michael
Cohen
is
a
shareholder
in
the
Miami,
Florida
office
of
Carlton
Fields,
P.A.
and
a
member
of
the
Firm's
Insurance
Practice
Group.
He
serves
as
Co
-Chair
of
the
Bad
Faith
Subcommittee
of
the
ICLC
ABA
Litigation
Section.
Kelly
Bittick
is
a
shareholder
in
the
Firm's
Tampa,
Florida
office
and
a
member
of
the
Firm's
Business
Litigation
Group.
He
has
authored
numerous
articles
pertaining
to
the
evidentiary
standards
for
expert
witness
testimony.
2
"Plaintiff'
designates
the
party
alleging
bad
faith.
In
a
first
party
action,
it
is
typically
the
policyholder.
In
a
third
-party
action,
the
plaintiff
may
be
the
policyholder
who
has
suffered
a
judgment
exceeding
the
policy
limits
or
the
claimant
who
has
recovered
an
excess
judgment
and
who
is
proceeding
in
his
own
right
and/or
as
an
assignee
of
the
policyholder.
The
infinite
variety
of
bad
faith
claims
and
substantive
and
procedural
rules
applicable
in
different
venues
precludes
an
all
-encompassing
view
of
approaches
used
by
the
courts
in
their
role
of
"gatekeepers"
regarding
admission
of
expert
testimony.
This
article,
therefore,
will
discuss
the
general
rules
regarding
expert
testimony;
the
application
of
those
rules
to
bad
faith
actions;
and
then
present
a
potpourri
of
various
issues
regarding
experts
in
bad
faith
litigation,
with
an
emphasis
on
providing
guidance
for
the
preparation
and
trial
of
a
bad
faith
case.
I.
General
Rules
Regarding
Expert
Testimony.
Courts
have
developed
a
number
of
principles
relating
to
the
admissibility
of
expert
testimony.
Federal
Rule
of
Evidence
702
codifies
some
of
the
basic
principles
for
cases
in
federal
court,
including
principles
of
reliability
first
imposed
by
the
Supreme
Court
in
the
seminal
cases
Dauberf
v.
Merrell
Dow
Pharmaceuticals,
Inc.
3
and
Kumho
Tire
Co.
v.
Carmichael.
4
Similar
rules
will
apply
in
state
courts
that
follow
an
approach
similar
to
Rule
702.
5
In
Dauberf,
the
Supreme
Court
considered
the
standards
for
the
admission
of
scientific,
technical
or
other
specialized
knowledge
to
assist
the
trier
of
fact.
The
Court
emphasized
that
the
trial
court
must
serve
as
a
"gatekeeper"
charged
with
excluding
speculative
or
unsupported
opinion
evidence.
Factors
referenced
by
the
court
included
whether
the
expert's
theories
or
technique
had
been
tested,
were
subject
to
standards,
controls
and
peer
review,
were
known
to
have
a
potential
rate
of
error,
and
were
"generally
accepted."
These
3
Dauberf
v.
Merrell
Dow
Pharmaceuticals,
Inc.,
509
U.S.
579
(1993).
4
Kumho
Tire
Co.
v.
Carmichael,
526
U.S.
137
(1999).
5
A
minority
of
jurisdictions
have
declined
to
adopt
Dauberf's
approach,
in
which
general
acceptance
is
only
one
factor
in
the
overall
reliability
analysis,
and
instead
continue
to
follow
the
rule
first
laid
down
in
Frye
v.
United
States,
293
F.
1013
(D.C.
Cir.
1923),
requiring
that
new
or
novel
expert
scientific
testimony
be
based
on
methods
or
principles
generally
accepted
in
the
scientific
discipline
in
question.
While
in
theory,
the
Frye
"general
acceptance"
test
might
be
viewed
as
more
stringent
than
a
Dauberf
approach,
the
Frye
approach
may
in
practice
be
more
liberal
to
the
extent
that
the
general
acceptance
test
is
only
applied
to
new
or
novel
scientific
evidence,
leaving
other
types
of
expert
evidence,
such
as
experience
-based
evidence,
largely
immune
from
scrutiny
on
grounds
of
reliability.
This
is
precisely
the
approach
rejected
by
Kumho
Tre
and
federal
Rule
702.
In
jurisdictions
limiting
the
applicability
of
the
general
acceptance
test
in
this
way,
the
Frye
test
may
have
little
application
to
many
types
of
experts
offered
in
bad
faith
litigation,
who
often
opine
based
on
something
other
than
true
scientific
knowledge.
In
these
jurisdictions,
the
case
law
will
have
to
be
consulted
to
determine
whether
principles
other
than
the
Frye
general
acceptance
test
may
be
used
to
exclude
unreliable
non-scientific
expert
testimony.
In
addition
to
requiring
that
the
expert
be
qualified
and
the
testimony
relevant,
most
courts
will
exclude
testimony
that
is
found
to
be
mere
speculation
or
unsupported
opinion.
2
