United States District Court, W.D. Oklahoma
WALTER HAMILTON AND DIANNA HAMILTON, Individually and as Legal Guardians of the Person and Estate of KAITLIN HAMILTON, an Incapacitated Person, Plaintiffs,
BAYER HEALTHCARE PHARMACEUTICALS INC., BAYER PHARMA AG, BAYER CORPORATION, BAYER HEALTHCARE LLC, BAYER HEALTHCARE AG AND BAYER AG Defendants, MUTUAL OF OMAHA INSURANCE COMPANY, Intervenor
WALTER HAMILTON AND DIANNA HAMILTON, Individually and as Legal Guardians of the Person and Estate of KAITLIN HAMILTON, an Incapacitated Person,
MEMORANDUM OPINION AND ORDER
J. CAUTHRON, UNITED STATES DISTRICT JUDGE
Mutual of Omaha Insurance Company (“Mutual”) has
filed a Motion seeking to exclude the opinions and testimony
of Plaintiffs' expert, Diane L. Luther (Dkt. No. 252).
Mutual argues that Ms. Luther is not qualified to render the
offered opinions, that her opinions impermissibly make legal
conclusions, and that her report fails to comply with
to Fed.R.Evid. 702 and Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579 (1993), the Court must conduct a
two-part inquiry prior to permitting an expert witness to
testify before a jury.
First, the district court must “determine whether the
expert is qualified ‘by knowledge, skill, experience,
training, or education' to render an opinion.”
[United States v. Nacchio, 555 F.3d 1234, 1241 (10th
Cir. 2009) (en banc)] (quoting Fed.R.Evid. 702). Second, if
the expert is sufficiently qualified, the district court
“must determine whether the expert's opinion is
reliable by assessing the underlying reasoning and
Schulenberg v. BNSF Ry. Co., 911 F.3d 1276, 1282-83
(10th Cir. 2018).
argues that Ms. Luther is not qualified because she is not a
lawyer and/or does not hold a special license relative to the
insurance policy at issue here. Mutual further argues that
Ms. Luther has no experience in dealing with group claims.
After considering the parties' arguments, the Court finds
Ms. Luther is qualified to offer expert testimony on this
matter. To the extent Mutual questions her qualifications,
the issues raised are more properly addressed via
cross-examination rather than exclusion.
also challenges certain opinions expressed by Ms. Luther
stating they are legal conclusions. Alternatively, Mutual
argues Ms. Luther applies an incorrect legal standard.
According to Mutual, Ms. Luther repeatedly used
“acceptable industry standards” language to
qualify her opinion of Mutual's wrongdoing. Mutual argues
this is not the proper standard. Rather, Mutual argues, the
proper analysis is whether it had a duty to cover the subject
Tenth Circuit has defined the threshold for expert testimony
on legal issues, stating:
The line we draw here is narrow. We do not exclude all
testimony regarding legal issues. We recognize that a witness
may refer to the law in expressing an opinion without that
reference rendering the testimony inadmissible. Indeed, a
witness may properly be called upon to aid the jury in
understanding the facts in evidence even though reference to
those facts is couched in legal terms. . . .
. . . [A]n expert's testimony is proper under Rule 702 if
the expert does not attempt to define the legal parameters
within which the jury must exercise its fact-finding
function. However, when the purpose of testimony is to direct
the jury's understanding of the legal standards upon
which their verdict must be based, the testimony cannot be
allowed. In no instance can a witness be permitted to define
the law of the case.
Specht v. Jensen, 853 F.2d 805, 809-10 (10th Cir.
1988). As this Court explained in ruling on a
Daubert challenge to an expert in an earlier bad
faith case: “the focal point of her testimony must be
on the Oklahoma insurance industry's practices and
standards and whether they were or were not met in this case.
The Court will not permit Sullivan to give testimony
regarding unsupported or inadequately explored conclusions
regarding issues of fact or to offer a legal opinion.”
Milburn v. Life Inv'rs Ins. Co. of Am., No.
CIV-04-0459-C, 2005 WL 6763386 (W.D. Okla. Jan. 19, 2005).
Ms. Luther's testimony must stay within these parameters.
As for Mutual's argument regarding Ms. Luther applying
the “acceptable industry standards” language, the
Court finds no merit in that position. Indeed, assisting the
jury in understanding appropriate industry standards is
precisely the reason for permitting expert testimony on
Mutual argues the Rule 26 disclosure of Ms. Luther was
inadequate as it failed to include her compensation schedule.
Mutual's argument is frivolous. While the initial
disclosure omitted compensation information, that omission
was corrected four days later and prior to Mutual's
deposition of Ms. Luther. At that deposition, Mutual explored
the compensation earned by Ms. Luther for her work in this
matter. Thus, Mutual has failed to demonstrate any prejudice
arising from the initial omission. Rather, to raise the issue
in this manner is disingenuous. This type of
“gotcha” tactic is not acceptable before this
reasons set forth herein, Intervenor Mutual of Omaha
Insurance Company's Motion to Exclude the Opinions and