United States District Court, D. Colorado
OPINION AND ORDER
RAYMOND P MOORE United States District Judge.
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.) 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.
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
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.
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).
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).
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.
Impact on Defendant's Business
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.)
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.)
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.
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.