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T. Thomas Metier
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When Can an Expert Witness Be Excluded from Testifying and Why?

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Attorney Tom Metier

That is the question the United States District Court for the District of Colorado undertakes in the case of O’Sullivan v. Geico Casualty Company, (Civil Action No. 15-cv-1838-WJM-MJW, February 7, 2017).

Donald O’Sullivan (“O’Sullivan”) sued Geico (“Geico”) Casualty Company because he claims Geico did not give him adequate notification or opportunity to buy more underinsured/uninsured motorist (“UM/UIM”) insurance. In the course of all the back and forth of the lawsuit, each side offered up expert witnesses. Geico moved to exclude O’Sullivan’s experts, Robert Baldwin and David Torres. Geico argues that Mr. Torres’s anticipated expert testimony and opinions should be excluded under Rule 702 for three reasons—first because he is not qualified, second, because his opinions are not based on a reliable application of sound principles to the facts of this case, and third, because some of his opinions are essentially legal conclusions, which is not permitted.

The court addressed Torres’s qualifications and decided he is qualified to testify. He worked for years in the industry and he is familiar with the standard practices of the insurance industry, and with the law covering insurers in Colorado. The court disagrees with Geico’s assertion that Torres does not have a higher level of knowledge or experience than an ordinary person who is employed in the insurance industry. Lastly, the court rejected the idea that Torres should not be allowed to testify because he recently shifted his emphasis to expert witness testimony. The court does agree with Geico that some of Torres’s opinions are speculative or conclusory. The court also says, an expert’s opinion is not inadmissible simply because it embraces an ultimate issue to be determined by the trier of fact. Therefore, Torres may testify about insurance industry standards, and compare Geico’s conduct with other insurers, but he cannot offer ultimate legal opinions.

Geico has a different reason for moving to exclude Robert Baldwin. Geico says his disclosure as a witness was untimely. Therefore, Geico would like to strike him as an expert. The Federal Rule of Civil Procedure 37(c) says, “…if a party fails to provide information or identify a witness as required…the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing or at a trial, unless the failure was…harmless.” The court does a lengthy analysis on Baldwin and whether he is an expert or a rebuttal witness. Ultimately, the court determines the untimely disclosure was harmless and therefore, Baldwin will not be excluded—however, his testimony will give the other side’s expert, Mr. Sands, the chance to do sur-rebuttal testimony based on Baldwin’s.

The Metier Law Firm is committed to assisting people with personal injury claims throughout Colorado, Wyoming and Nebraska, and we frequently serve as co-counsel to law firms nationwide. Tom Metier recently secured the largest personal injury verdict in Colorado.