United States District Court, M.D. Florida, Tampa Division
NICKY B. DUDASH, individually and as assignee of David Heisig, Plaintiff,
SOUTHERN-OWNERS INSURANCE COMPANY, Defendant.
D. WHITTEMORE, UNITED STATES DISTRICT JUDGE
THE COURT are Plaintiff s Daubert Motion to Exclude
the Opinions of David de Armas, Esq. (Dkt. 52), Plaintiffs
Daubert Motion to Exclude the Opinions of Kelly
Gray, Esq. (Dkt. 54), Defendant's Motion in
Limine Regarding Expert Testimony (Dkt. 57), and
the respective responses (Dkts. 63, 64, 65). This is a
straight forward bad faith insurance case against
Souther-Owners Insurance Company, Heisig's insurance
carrier. Dudash was injured in an automobile accident as a
result of Heisig's negligence, and Dudash obtained
ajudgment against Heisig in excess of his policy limits in an
underlying state court action. The parties' respective
motions for summary judgment were denied. (Dkt. 77). Each
party moves to exclude the opinions of the opposing
party's expert witness(es). Upon consideration, the
Motions are DENIED, with one minor exception with respect to
de Armas, an attorney who practices in bad faith insurance
litigation, was retained by Southern-Owners to offer expert
testimony on the issue of bad faith. He has practiced
insurance bad faith law since 1987. (Dkt. 64-1 at 8-11).
Based on his review of documents produced in discovery, his
experience, and his understanding of Florida law. he opines
that Southern-Owners did not have an opportunity to settle
Dudash's claim. (Dkt. 64-1; Dkt. 64-2 at 22:1-19).
retained Susan Kaufman, an insurance adjuster, who opines
that Southern-Owners did not undertake a fair or honest
evaluation of Dudash's claim or make a fair and honest
attempt to resolve her claim through negotiations. Kaufman
has been licensed as a Florida Licensed All Lines Adjuster
since 1986 and worked as a claims adjuster for 24 years.
Gray, lead claims counsel for an insurance carrier since
2009, was retained by Southern-Owners to rebut Kaufman's
opinions. She has practiced in the area of bad faith
insurance litigation since 1993. (Dkt. 54-1 at 13). She
reviewed the record in reaching her opinion that
Southern-Owners sought to fairly and accurately adjust the
claim, verify Dudash's injuries, and resolve the claim.
(Id. at 9). She is also critical of the opinions
reached by Kaufman. (Id. at 9-12).
witness qualified by knowledge, skill, experience, training,
or education may testify in the form of an opinion if (a) the
expert's "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. Trial courts act as gatekeepers to ensure
expert testimony is relevant and reliable. Kumho Tire Co.
v. Carmichael, 526 U.S. 137, 152 (1999); Dauberi v.
Merrel Dow Pharms., Inc., 509 U.S. 579, 589 (1993). To
determine reliability, a district court considers whether (1)
the expert is qualified to testify competently regarding the
matters he intends to address; (2) the methodology by which
the expert reaches his conclusions is sufficiently reliable;
and (3) the testimony assists the trier of fact, through the
application of specialized expertise, to understand the
evidence or to determine a fact in issue. Adams v.
Laboratory Corp. of America, 760 F.3d 1322, 1328 (11th
first prong of Daubert requires an expert to be
qualified. A witness may gain expertise through
"knowledge, skill, experience, training, or
education." Fed.R.Evid. 702. The second prong,
reliability, is a consideration separate from expertise, and
an expert's experience alone does not guarantee
reliability. Frazier, 387 F.3d at 1261.
testimony must also assist the trier of fact to be
admissible. Quiet Tech, 326 F.3d at 1340-41. It will
do so if it "concerns matters that are beyond the
understanding of the average layperson."
Frazier, 387 F.3d at 1262. Expert testimony is
generally not helpful, and therefore not admissible, when
"it offers nothing more than what lawyers for the
parties can argue in closing arguments." Id. at
1262-63. The party offering an expert witness has the burden
of laying the proper foundation for admission of the
expert's testimony by a preponderance of the evidence.
Allison v. McGhan, 184 F.3d 1300, 1306 (11th Cir.
1999). Ultimately, trial courts have "considerable
leeway in deciding in a particular case how to go about
determining whether particular expert testimony is
reliable." Kumho Tire, 526 U.S. at 152.
David de Armas
contends that De Armas is not qualified to render his
opinions in this case because he is not an insurance adjuster
and has not worked for an insurance provider.
Notwithstanding, De Armas is an attorney licensed in Florida
who has practiced for more than thirty years. A third of his
practice includes working with insurance carriers in bad
faith or claims handling matters, and a third includes
representing plaintiffs in personal injury or bad faith
cases. (Dkt. 64-2 at 12:18-13:19). Dudash's contentions
go to the weight of De Armas' opinions rather than their
admissibility. He is qualified based on his knowledge,
experience, education and training to provide expert opinions
in this case.
also challenges De Armas, contending that his opinions are
not the product of reliable methodology and are inadmissible
as legal argument and conclusions. With respect to the first
contention, I disagree. De Armas represents insurance
companies and provides advice on good faith claims
handling, (Dkt. 64 at 6). And he is an experienced attorney.
Common law bad faith developed through Florida case law.
See Perera v. U.S. Fid. & Guar. Co., 35 So.3d
893, 898-902 (Fla. 2010); Berges v. Infinity Ins.
Co., 896 So.2d 665, 672 (Fla. 2004). His opinions are
based on his understanding of Florida law and a review of the
documents in the case. He is uniquely qualified to apply his
knowledge and experience to the issues which are the subject
of his opinions. That is a sufficiently reliable methodology
in a bad faith case.
the second contention, Dudash's contention is not without
merit. No witness may offer legal conclusions or testify to
the legal implications of conduct. Montgomery v. Aetna
Cas.& Sur. Co., 898 F.2d 1537, 1541 (11th Cir.
1990). And a witness' use of a term with legal
significance does not constitute the expression of a legal
opinion. See Camacho v. Nationwide Mut. Ins. Co.,13F.Supp.3d 1343, 1367 (N.D.Ga. 2014) ("Nationwide
concedes in its Reply that expert testimony can reference
terms with legal significance without transforming the
opinion into a legal conclusion"). And, in Florida
"[traditionally, reasonable diligence and ordinary care
are considerations of fact -not of law." Campbell v.
Gov't Employees Ins. Co.,306 So.2d 525, 530-31
(Fla. 1974). And Southern-Owners asserts that De Armas will
testify as "to factual conclusions, not ...