United States District Court, D. Colorado
GARY L. HAYNES, for and on behalf of the Insurance Trust of trustee Marjorie Unger, Plaintiff,
v.
TRANSAMERICA CORPORATION, a member of Aegon Group, doing business as Transamerica Life Insurance Company, Defendant.
ORDER
KRISTEN L. MIX UNITED STATES MAGISTRATE JUDGE
This
matter is before the Court on Defendant's Motion
to Exclude Expert Witness [#60][1] (the
“Motion”). Plaintiff filed a Response
[#67][2] in opposition to the Motion, and Defendant
filed a Reply [#69]. The Court has reviewed the Motion [#60],
the Response [#67], the Reply [#69], the entire case file,
and the applicable law, and is sufficiently advised in the
premises. For the reasons set forth below, the Motion [#60]
is GRANTED.
I.
Summary of the Case
This
case arises out of an insurance dispute. Since the 1980s,
Plaintiff has paid the bills and taken care of the day-to-day
business of an insurance trust which owns the contested life
insurance policy. Compl. [#5] at 2. Plaintiff sued
Defendant for cancelling the life insurance policy, which had
allegedly lapsed due to insufficient payment. Notice of
Removal [#1] at 1-2; Motion [#60] at 1.
Plaintiff requested that Defendant reinstate the policy,
filed this lawsuit, and then received notice that Defendant
denied Plaintiff's reinstatement application, assertedly
“consistent with the terms of the policy.”
Motion [#60] at 1.
Defendant
alleges that the policy was cancelled because Plaintiff did
not pay the appropriate premium payments required to repay an
approximately twenty-year loan taken out against the policy.
Id. at 3-4. Defendant states that “consistent
with the terms of the policy, ” Defendant began sending
Plaintiff notices “as the gross/cash value of the
policy minus the increasing loan balance became less than the
monthly deduction due, and therefore, additional premium was
required to prevent the policy from lapsing.”
Id. at 4. Defendant continued to send these notices
from 2009 through October 2015, at which point Defendant
stated that Plaintiff must pay $20, 499.14 before November 8,
2015, to prevent the policy from lapsing. Id. at
4-5. Plaintiff paid $5, 000.00 and the policy lapsed.
Id. at 5.
Plaintiff
has designated Bradley Levin (“Levin”) as an
expert witness. Motion [#60] at 6; Exhibit
A [#60-11]. Mr. Levin states that his “present
opinions [subject to his review of subsequent materials] are
that [Defendant] acted unreasonably and contrary to
applicable standards in determining that coverage under the
Unger Policy had lapsed and then refusing to reinstate the
policy, and that, by its conduct, [Defendant] vitiated its
duties of good faith and fair dealing . . . .”
Def.'s Ex. A [#60-11] at 2. He states that he
reviewed various documents, including, but not limited to,
documents produced for litigation, the powers of attorney,
the insurance agreement, and communications between Plaintiff
and Defendant. Id. at 1. Mr. Levin does not state
that he reviewed documents that were not specific to this
litigation, such as recent bad faith insurance cases or other
documents which may outline industry standards.
Defendant
seeks to exclude Mr. Levin's testimony on the basis that
it is unreliable: “[w]hile [Mr. Levin] summarily
concludes that [Defendant] acted in bad faith, a review of
his report establishes that he fails to set forth any
reliable reasoning or methodology to support [his] opinion as
required under Fed.R.Evid. 702.” Motion [#60]
at 2.
II.
Standard of Review
“Admission
at trial of expert testimony is governed by Fed.R.Evid. 702,
which imposes on the district court a gatekeeper function to
‘ensure that any and all scientific testimony or
evidence admitted is not only relevant, but
reliable.'” United States v. Gabaldon, 389
F.3d 1090, 1098 (10th Cir. 2004) (quoting Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 589
(1993)). Rule 702 provides the foundational requirements for
admission of expert opinions:
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 ...