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Rockhill Insurance Co. v. CFI-Global Fisheries Management

United States District Court, D. Colorado

March 22, 2018



          RAYMOND P MOORE United States District Judge.

         Pending before the Court is plaintiff Rockhill Insurance Company's (“plaintiff”) Motion to Partially Exclude Opinions & Testimony of Paul Brenkman (“the motion to exclude”). (ECF No. 67.)[1] Defendant CFI-Global Fisheries Management (“defendant”) has filed a response (ECF No. 69), and plaintiff has filed a reply (ECF No. 72). The Court makes the following findings.

         I. Legal Standard

         Rule 702 of the Federal Rules of Evidence (“Rule 702”) governs the admission of expert evidence in federal court. Fed.R.Evid. 702; Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167 (1999). Rule 702 provides as follows.

A witness who is qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

Fed.R.Evid. 702.

         The Court's role in considering proposed expert evidence is one of a “gatekeeper.” Kumho Tire, 526 U.S. at 147. Factors that might be relevant in carrying out this role include: (1) whether a theory or technique can be or has been tested; (2) whether a theory or technique has been subjected to peer review and publication; (3) whether there is a high known or potential rate of error to a technique and whether there are standards controlling the technique's operation; and (4) whether the theory or technique enjoys general acceptance within a relevant community. Id. at 149-150. These factors “may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert's particular expertise, and the subject of his testimony.” Id. at 150 (quotation omitted).

         The proponent of expert evidence bears the burden of establishing its admissibility. Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 970 n.4 (10th Cir. 2001).

         II. Discussion

         Plaintiff objects to the following testimony from Paul Brenkman (“Mr. Brenkman”): (1) testimony on the economic impact of plaintiff's coverage determination on defendant's business; (2) testimony containing legal conclusions; and (3) testimony mischaracterizing the damages awarded in an arbitration as “Slovek damages.” (ECF No. 67 at 2, 5-13.) The Court will address each matter in turn.

         A. Impact on Defendant's Business

         Plaintiff argues testimony on the impact of its coverage determination on defendant's business should be excluded because Mr. Brenkman has no expertise in business, economics, or defendant's specific line of work. (ECF No. 67 at 6.) Plaintiff argues that, as a result, testimony on this topic is outside the scope of Mr. Brenkman's expertise. (Id.) In response, defendant argues that Mr. Brenkman should be allowed to opine on this matter because he has experience dealing with insurance claims and their foreseeable impact on policyholders. (ECF No. 69 at 7.) Defendant argues that plaintiff's criticisms of Mr. Brenkman in this regard go to the weight of his testimony, not its admissibility. (Id. at 8-9.)

         The Court agrees with plaintiff that this testimony should be excluded in its entirety. The simple reason is that Mr. Brenkman has no relevant experience in the impact a denial of policy coverage (i.e., the denial of money) may have on any business, let alone defendant's business. And defendant does not point to any such experience. Instead, defendant points to Mr. Brenkman's experience in insurance claims and his purported experience in the foreseeable impacts of insurance claims on policyholders. As for the former, experience in insurance claims has no relevance as to how much defendant's business would be impacted by plaintiff's policy determination. As for the latter, whatever it is that defendant means by foreseeing the impact of insurance claims on policyholders, the Court doubts it is an area of expertise, and, even if it were, it is not one of Mr. Brenkman's stated areas of expertise. (See ECF No. 67-2 at 1.)

         Defendant's argue that Mr. Brenkman is “plainly qualified” to opine that plaintiff's refusal to pay a nearly million dollar claim negatively impacted defendant's business. (ECF No. 69 at 7-8.) Defendants are correct in one sense, Mr. Brenkman could say this with some seriousness, assuming of course Mr. Brenkman was aware of defendant's bottom line. The problem is that any person, expert or lay, could make the same statement, assuming they are also aware of defendant's bottom line. It is merely common sense.

         As a result, the Court finds that Mr. Brenkman is not qualified to testify on this subject, and, even if he were, it would not be helpful to a jury. Thus, the motion to exclude is GRANTED in this respect.

         B. Legal ...

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