Brighton Trustees, LLC v. Genworth Life and Annuity Insurance Company PLEASE FILE IN THIS CASE ONLY! DO NOT FILE IN MEMBER CASES!, 3:20-cv-00240

Plaintiffs (Brighton Trustees, LLC and Ronald Daubenmier) seek class certification for owners of certain Genworth universal life policies (GE Gold, First Choice Gold, Gold II variants) challenging a December 2019 cost-of-insurance (COI) rate increase as unlawful under the policies.
Policies were issued by First Colony (merged into Genworth) and use standardized, non-negotiable policy forms; COI charges are computed monthly as Net Amount at Risk (NAR) × monthly COI rate.
Plaintiffs submitted two expert declarations in support of class certification: Howard Zail (actuary) opining common actuarial methods/assumptions and class identifiability; Robert Mills (damages expert) calculating per-policy damages by comparing pre- and post-redetermination COI rates.
Genworth moved to exclude both experts under Rule 702/Daubert, arguing Zail impermissibly opines on legal merits and cannot reliably identify class members, and Mills uses an improper baseline and ignores months with lower COI rates.
The court treated the motions in the class-certification context, limiting consideration to testimony relevant to Rule 23 issues and reserving Daubert review of any merits testimony for later; it denied both motions in part because the challenged opinions are usable for certification questions and any merit-related portions will be disregarded or revisited later.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Exclude Zail for opining on legal issues/merits	Zail provides actuarial background and class-cert-relevant methodology, not legal conclusions	Zail improperly opines on whether Genworth breached policy terms (legal question)	Denied as premature; court will ignore merits-based legal opinions and consider only class-cert-relevant portions
Ascertainability / ability to identify class members	Zail can identify class policies from Genworth records and common mechanical calculations	Zail cannot reliably identify members who may later benefit from COI decreases	Denied; court finds methods sufficiently reliable for certification, but will ignore conclusions if later ruling on class composition requires it
Mills' damages baseline (using original COI as baseline)	Using original COI as baseline is appropriate because claim is breach of the change from original to redetermined COI	Baseline is improper; plaintiffs must propose an alternate COI or different damages approach	Denied at certification stage; original-rate baseline acceptable for now—merits disputes preserved for later
Mills' failure to offset months with lower COI rates / model completeness	Mills can calculate offsets and his model supports class-wide damages inquiry	Model ignores months with lower COI and creates individualized issues	Denied for certification purposes; offsets/individualized issues are merits questions and can be revisited later

Daubert v. Merrell Dow Pharms., 509 U.S. 579 (establishes district court gatekeeping for expert testimony)
Kumho Tire Co. v. Carmichael, 526 U.S. 137 (Daubert gatekeeping applies to all expert testimony, not only scientific)
Sardis v. Overhead Door Corp., 10 F.4th 268 (4th Cir. 2021) (discusses Rule 702 reliability and relevance in the Fourth Circuit)