Haynes v. Transamerica Corp.

          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 ...