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Dudash v. Southern-Owners Insurance Co.

United States District Court, M.D. Florida, Tampa Division

May 12, 2017

NICKY B. DUDASH, individually and as assignee of David Heisig, Plaintiff,



         BEFORE 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[1] (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 Susan Kaufman.

         David 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).

         Dudash 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. (Dkt. 65-1).

         Kelly 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).


         A 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 Cir. 2014).

         The 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.

         Expert 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.


         A. David de Armas

         Dudash 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.

         Dudash 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.

         As for 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 ...

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