United States District Court, D. Colorado
Kristen L. Mix United States Magistrate Judge
matter is before the Court on Defendant QBE Insurance
Company's Motion to Exclude Expert Testimony Pursuant to
Fed.R.Evid. 702 [#34] (the “Motion”). The Court has
reviewed the Motion [#34], the Response [#39], the Reply
[#42], the case file, and the applicable law, and is
sufficiently advised in the premises. For the reasons set
forth below, the Motion [#34] is GRANTED IN PART, DENIED IN
PART, AND DENIED AS MOOT IN PART.
a breach of insurance contract and bad faith lawsuit arising
out of an underlying lawsuit and arbitration (the
“Underlying Case”) involving, inter
alia, claims of fraud, intentional misrepresentation,
and the failure to disclose known defects by David Bowser
(“Bowser”) in the sale to Plaintiff Juan Carlos
Lua (“Plaintiff”) of a residential home.
Motion [#34] at 1. Mr. Bowser was the listing agent
for the Home. Id. Upon being served with the
underlying complaint, Mr. Bowser tendered the matter to QBE
Insurance Company (“Defendant”) pursuant to the
claims-made Errors & Omissions liability insurance policy
(the “Policy”) issued to him. Id. at
1-2. Defendant denied coverage for the underlying matter.
Id. at 2.
Plaintiff and Mr. Bowser entered into an agreement in which
Mr. Bowser admitted liability in the Underlying Case and
assigned to Plaintiff his rights under the Policy.
Motion [#34] at 2. Plaintiff and Mr. Bowser agreed
to have the amount of damages determined in binding
arbitration. Id. Plaintiff presented an uncontested
case in support of his alleged damages, and called three
witnesses to testify: Plaintiff; Plaintiff's spouse,
Perla Gonzalez; and Plaintiff's expert witness, Robert H.
Pratt. Id. Plaintiff was awarded $594, 132.85 on the
claim for intentional misrepresentation. Id.
the arbitration award, Plaintiff, as assignee of Mr. Bowser,
filed the instant lawsuit against Defendant for breach of
contract, common law bad faith, and statutory damages under
Colo. Rev. Stat. §§ 10-3-1115 and 1116.
Motion [#34] at 3.
Motion [#34], pursuant to Fed.R.Evid. 702, asserts that
Plaintiff's expert Zachary Warzel's opinions
concerning the purported standards of care applicable to Mr.
Bowser's claim under the professional liability policy
and the reasonableness of Defendant's conduct under those
standards should be stricken as unreliable and as improper
legal conclusions. Id. at 3. The Motion also seeks
to strike experts Peter Marxenhausen and Bernard Kintnerfor,
endorsed to testify as to the reasonableness of the
arbitration award, because they did not testify at the
arbitration and their opinions are not relevant to the
coverage dispute. Id.
to the Motion [#34], on October 8, 2019, the Court granted
Plaintiff's Motion for Partial Summary Judgment [#40],
finding that Defendant had a duty to defend the Underlying
Case. Order on Summary Judgment [#64], at 27. The
Court granted in part and denied in part Defendant's
Motion for Summary Judgment [#35], finding that there was no
coverage under the Policy under the agent-owned property and
fraud exclusions, but that the lack of coverage under these
exclusions did not excuse Defendant's duty to defend.
at trial of expert testimony is governed by Fed.R.Evid. 702
and requires a two-step analysis. 103 Investors I, L.P.
v. Square D Co., 470 F.3d 985, 990 (10th Cir. 2006).
“First, the court must determine whether the expert is
qualified by ‘knowledge, skill, experience, training,
or education' to render an opinion.” Id.
(citation omitted). “Second, if the expert is
sufficiently qualified, the court must determine whether the
opinion is reliable under the principles set forth in
Daubert. Id. (citing Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)).
thus has a “gatekeeping role” in deciding whether
to admit or exclude expert testimony, and must determine that
the testimony is both reliable and relevant.
Daubert, 509 U.S. at 589, 597. An opinion is
reliable if the reasoning or methodology of the expert is
valid and “can be applied to the facts in issue.”
Id. at 592. An opinion is relevant if it
“‘will assist the trier of fact to understand the
evidence or to determine a fact in issue.'”
Id. (citation omitted).
the determination of whether expert testimony should be
admitted is within the sound discretion of the trial court.
Vining v. Enterprise Fin. Group, 148 F.3d 1206, 1218
(10th Cir. 1998). “‘[T]he rejection of expert
testimony is the exception rather than the rule.'”
O'Sullivan v. Geico Cas. Co., 233 F.Supp.3d 917,
922 (D. Colo. 2017) (quoting Fed.R.Evid. 702 advisory
committee's note). “‘[T]he trial court's
role as gatekeeper is not intended to serve as a replacement
for the adversary system. . . . Vigorous cross-examination,
presentation of contrary evidence, and careful instruction on
the burden of proof are the traditional and appropriate means
of attacking shaky but admissible evidence.”
Id. (citing id.)
Expert Zachary Warzel
asserts that Zachary Warzel (“Warzel”) is
endorsed by Plaintiff to provide opinions concerning the
purported standards of care applicable to Mr. Bowser's
claim under the professional liability policy and the
reasonableness of Defendant's conduct under those alleged
standards. Motion [#34], at 2-3, Ex.3. Defendant
first seeks to strike a number of opinions of Mr. Warzel
(opinions a. through w.) on the basis that they are
“nothing more than a recitation of Colorado law”
and encroach “‘on the trial court's authority
to instruct the jury as to the applicable law.'”
Motion [#34] at 4-8 (quoting Specht v.
Jensen, 853 F.2d 805, 807 (10th Cir. 1988)). Rather than
“parse” through the opinions in paragraphs a.
through w. or other disputed paragraphs
“line-by-line”, the Court sets forth guidelines
that will govern Mr. Warzel's testimony at trial
regarding the disputed issues. See King v. Allstate Ins.
Co., No. 11-cv-00103-WJM-BNB, 2013 WL 3943607, *5 (D.
Colo. July 31, 2010). As noted in King, “an
expert's testimony at trial rarely mirrors the precise
wording, structure or organization of his expert
Court finds that many of the opinions of Mr. Warzel that
Defendant seeks to exclude are now moot in light of the
Court's Order on Summary Judgment [#64]. These include
any opinions regarding: (1) coverage and the duty to
indemnify under the Policy; (2) whether the duty to defend
was breached; and (3) whether the complaint rule applies to
the duty to defend and the applicability of any exceptions.
Related to the latter argument, Defendant's argument that
Mr. Warzel's opinions in paragraphs (n), (o), (p), (r),
and (v) are incomplete and/or inaccurate under Colorado law
because they do not take into account the exceptions to that
complaint rule is also moot. Motion [#34] at 9-10.