233 F. Supp. 3d 917
D. Colo.2017Background
- O’Sullivan sued Geico under Colorado law for breach of contract, statutory bad faith (Colo. Rev. Stat. §§ 10-3-1115 & -1116), breach of the duty of good faith and fair dealing, and exemplary damages, alleging Geico failed to adequately offer UM/UIM limits equal to bodily injury limits.
- Scheduling: parties exchanged affirmative expert disclosures on April 18, 2016; rebuttal expert disclosure deadline was extended to May 18, 2016 but discovery (including depositions) remained set to close May 23, 2016, providing only five days to complete rebuttal discovery.
- Plaintiff disclosed David Torres (insurance claims consultant, former State Farm claims manager) as an affirmative expert on claims-handling standards; Geico disclosed attorney Jon Sands as its affirmative expert addressing legal standards and Parfrey analysis.
- On May 18, 2016 (rebuttal deadline) Plaintiff disclosed Robert Baldwin (attorney) as a rebuttal expert to Sands; Geico moved to exclude Baldwin as untimely under Rule 26/37 and moved to exclude Torres under Daubert/Rule 702.
- The court entertained: (1) whether Torres is qualified and whether his methods/opinions are admissible (distinguishing permissible industry-standard testimony from speculative or legal-conclusion testimony); and (2) whether Baldwin’s rebuttal disclosure was an improper untimely affirmative disclosure and whether exclusion was warranted or whether less drastic relief would suffice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility / Qualifications of Torres under Fed. R. Evid. 702 | Torres is a decades-long insurance claims professional whose experience and review of the record make him qualified to testify about industry standards and claims handling. | Torres lacks specialized qualification beyond an ordinary industry employee and his report is too generic and unsupported. | Torres is qualified; his experience is sufficient to assist the jury. Admissible on industry-standards topics. |
| Reliability / Scope of Torres’s opinions (including speculation) | Torres applied industry standards to the record and may testify about differences between Geico’s conduct and industry practice. | Torres’s report is insufficiently grounded, speculative, and lacks document-specific basis; some opinions improperly speculate about Geico’s motives. | General methodology and industry-standard opinions admissible; speculative statements (what Geico "may" have done or intended) and unsupported conjecture excluded. |
| Legal conclusions / ultimate issue by Torres | Torres can explain standards and factual departures; his conclusions about reasonableness assist jury. | Torres (non-lawyer) should not be allowed to offer legal conclusions (e.g., violations of statute, duty of good faith) or tell the jury the legal result. | Excluded: any legal conclusions (e.g., that Geico violated statutes or acted unreasonably as a matter of law). Torres may not state ultimate legal conclusions but may testify how conduct differed from industry practice. |
| Baldwin rebuttal disclosure / timeliness under Rules 26 & 37 | Baldwin was timely disclosed as rebuttal to Sands (an attorney who offered legal analysis); Baldwin’s opinions directly rebut Sands’s legal and reasonableness analysis. | Baldwin’s report is actually affirmative, untimely, and should be excluded under Rule 37(c). | Baldwin’s testimony is not excluded. Court finds his opinions fall within the same subject matter as Sands or are harmless; allows Baldwin to testify and permits limited sur-rebuttal by Sands at trial. Exclusion would be disproportionate. |
Key Cases Cited
- Allstate Ins. Co. v. Parfrey, 830 P.2d 905 (Colo. 1992) (governs standards for offering UM/UIM limits equal to liability limits)
- Goodson v. Am. Standard Ins. Co. of Wisconsin, 89 P.3d 409 (Colo. 2004) (industry standards can inform reasonableness in bad-faith claims)
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (U.S. 1993) (trial-court gatekeeping for expert testimony under Rule 702)
- Specht v. Jensen, 853 F.2d 805 (10th Cir. 1988) (experts may not usurp jury’s role by stating legal conclusions)
- Thompson v. State Farm Fire & Cas. Co., 34 F.3d 932 (10th Cir. 1994) (expert testimony about insurance standards may be excluded when it does not assist the jury)
- United States v. Nacchio, 555 F.3d 1234 (10th Cir. 2009) (proponent bears burden to show Rule 702 foundational requirements)
- United States v. Richter, 796 F.3d 1173 (10th Cir. 2015) (expert may not tell the jury what legal result to reach)