Opinion
No. 03 Civ. 0618 (JFK).
January 24, 2005
MEMORANDUM OPINION AND ORDER
Defendants move to preclude the testimony of Plaintiffs' insurance expert, Harry S. Keefe. Defendants argue that the testimony is inadmissible under Rule 702 because it is unreliable and within the knowledge or common sense of the average fact-finder, and inadmissible under Rule 704 because it goes to an ultimate issue in the case.
According to his report (Def. Ltr., Exh. A), Mr. Keefe is a graduate of the U.S. Merchant Marine Academy and holds a Master's degree in Marine Transportation Management from SUNY Maritime. His marine insurance career lasted over 40 years, and his various positions with insurance companies, insurance managing agencies and brokerage firms have emphasized hull and machinery insurance underwriting. From 1980 to 1985, Mr. Keefe was president and CEO of Talbot, Bird Co., Inc., a marine underwriting and management firm. After GRE Insurance Group acquired Talbot, Bird, Mr. Keefe remained as vice president and established and managed GRE's "blue water" hull underwriting department. He retired as vice president in 1998.
Mr. Keefe states that the term "Blue Water vessel" refers to a vessel generally engaged in international trade.
Mr. Keefe's report states that insurance of a single vessel (a "singleton") poses a different risk from insurance of a group of vessels (a "fleet"), and that knowledge that the risk is a singleton would affect the underwriter's decision whether to insure the risk. Mr. Keefe states that even if the underwriter decided to insure the singleton, as opposed to a fleet, the premium, deductible and extent of coverage would be affected. Mr. Keefe states that, as an underwriter, he would consider it a misrepresentation if he were advised that the risk presented was a fleet when, in actuality, it was a singleton.
Mr. Keefe's report is eminently reasonable. In Exhibit C to their opposition papers, Plaintiffs include a Declaration by William H. Jaklitsch, who is currently Senior Vice President, Managing Underwriter at American Hull Insurance Syndicate, which specializes in underwriting hull and machinery insurance for blue water vessels. Mr. Jaklitsch agrees with Mr. Keefe's report and states that it "accurately reflect[s] the current state of the marine insurance market and the concerns of underwriters with respect to underwriting hull and machinery insurance on blue water vessels." (Pl. Ltr., Exh. C at 1-2).
Defendants assert that Mr. Keefe has not been in underwriting for over ten years, could not offer an opinion regarding insurance practices relative to fleet sizes in 2002, and has no knowledge of Plaintiff underwriters' practices in 2002. (Def. Ltr. at 2-3). These objections, to the extent they are accurate, do not raise real Daubert or Kumho Tire reliability issues. They go to weight, not admissibility. As this will be a bench trial, there is no concern with protecting a jury from "being bamboozled by technical evidence of dubious merit." SmithKline Beecham Corp. v. Apotex Corp., 247 F. Supp. 2d 1011, 1042 (N.D. Ill. 2003). Furthermore, as the Supreme Court pointed out in Daubert, "vigorous cross-examination" and "presentation of contrary evidence" are among the means for "attacking shaky but admissible evidence." Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 596 (1993).
Mr. Keefe is clearly an expert in the marine underwriting field, and the expert opinions he will offer are within that expertise. Furthermore, in absence of any evidence that Blue Water Hull Machinery Insurance Underwriting 101 is now required learning in the nation's schools, his testimony surely does not fall within the ordinary ken and common sense of the average factfinder. Rule 702 does not require exclusion of his testimony.
There is no Rule 704 problem either. Rule 704 states that "[e]xcept as provided in subsection (b) [expert testimony concerning the mental state or condition of criminal defendant], testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." Fed.R.Evid. 704(a).
The motion is denied.
SO ORDERED.