Yesterday afternoon, Jean Niven presented an internal Merlin Law Group seminar on legal education on expert witnesses and the exact standards for their addition to testify in federal court. During the presentation, I thought about how a lost insurance cover case 1 could have ended differently if the policyholder's expert witnesses had been allowed to testify about the damages. Jean is our company's expert witness authority. She works with our customers' expert witnesses to ensure they can testify.
The letter of appeal submitted by the policyholders' lawyer described the following facts:
Berries owns and operates a restaurant … in Miami, Florida … The restaurant was insured … under an "all risk" commercial insurance … The policy covered "direct physical loss of or damage to covered property in the premises described in the statements caused by or as a result of any covered cause of loss" … "Covered causes of loss" means "direct physical loss unless the loss is "excluded or limited … The term" direct physical loss "is not defined in the policy.
On 7 June 2018, the parties filed a joint lawsuit Stipulation … which, among other things, prescribed that (1) “
During the trial, Berries retained an awning expert and sound / lighting expert to assess the damage to the restaurant. After submitting his expert opinions, Berries was told that the damage to its awning system was more serious than previously thought and that there was damage to its sound / lighting system that could be attributed to the road work … Bär supplemented his claim to include $ 318,688.57 in property damage, $ 187,000.00 for loss of income (less than previously claimed) and $ 4,000.00 for damage data expenses … The main reason for the increase in Berries' claims model was the difference between repairing (or cleaning) versus compensating Berries sophisticated awning systems, consisting of fixed roofs, roller blinds, a retractable roof and associated hardware …
[T] the parties submitted cross-cutting proposals for brief assessment and to exclude testimonies from the other experts. .. [T] he granted the district court Sparta's proposal for a summary judgment and excluded testimony from Berries' experts, Alex Posada (sound / lighting ing), Chris Thompson (awning) and Al Brizuela (technology / causation). The district court concluded that, although qualified to testify as experts, (1) Alex Posada's testimony should be excluded because he did not perform diagnostic testing of quality control (QC), (2) Chris Thompson's testimony should be excluded because of his visual tests and personal experience was not sufficient to elevate his testimony beyond "unexplained assurances and unsupported speculation", and (3) Al Brizuela's testimony should be excluded as he did not perform chemical tests and was not "unable to attribute damage to the construction dust to any degree of certainty. "
Given the exclusion of these experts, the Court found that a summary judgment in Sparta's favor was appropriate because" [Berries] cannot show that construction dust and debris from 2014 caused the alleged "direct physical loss" to their awnings, retractable roofs, HVAC systems, railings and sound and lighting systems & # 39; …. The district court implicitly admitted to carrying on arande could p continued with its original demand for cleaning, despite the strike by the gentlemen. Posada, Thompson and Brizuela …. The district court also wrote a summary judgment on Berries & # 39; income loss claim because it considered that (1) Berries & # 39; has not caused a direct physical loss or damage "to the restaurant and (2) Berries" cannot show that there was any outage of "physical damage" because "the restaurant remained open every day."
Without proof, how can a policyholder win a case? Getting your expert witness thrown out before a trial even begins is like a bomb exploding in your case. As mentioned in Large expert witnesses are important for cases with property insurance :
Expert witnesses are important. In order to obtain a favorable judgment, the policyholders' lawyers must be able to make exhaustive preparations for the preliminary investigation, while at the same time being able to present evidence in an efficient manner at trial, including evidence from expert opinions.
is really starting at present a lawyer veter experts' references. Therefore, it is important to review all material in the expert's documents and discuss all issues related to their views and the basis of the opinion before filing in order to strengthen a strong basis for the trial.
The Court is an unpublished opinion, but I expect that in many future it will be cited by many insurance companies' cover lawyers as a "convincing" authority, even if it has no binding value in other cases because it is "unpublished". Facts about bad cases can lead to bad case law. I will discuss reasons for legal coverage tomorrow afternoon in my Chip @ 2 Livestream and with a special Friday afternoon blog.
Still the point of this blog post is that experts and the quality of their work, reports and testimonies are great. Courts across the country have stiffened the requirements for expert opinions. This trend has meant that our company spends much more time getting experts to work harder with their expertise so that they can present evidence to judges and juries. It has also led to an increase in spending and uncertainty over litigation.
Jean Niven is another secret weapon in our company. In this day of legal specialization, it is obvious that having a specialized lawyer in this field of expert law helps us win more cases.
Thought for the day
Nothing we do is more important than hiring and developing people. At the end of the day, you focus on people, not on strategies.
1 Mama Jo & # 39; s, Inc. vs. Sparta Ins. Co. No. 18-12887 (11th Cir. 18 Aug. 2020).