Opinion
CIVIL ACTION NO. 3:00-CV-1375-G.
March 16, 2001.
MEMORANDUM ORDER
Before the court is the motion of the defendants United Benefit Life Insurance Company and Judy Wagner (collectively, "United Benefit") to exclude the testimony of expert witness Quida Peterson ("Peterson"). For the reasons stated below, the motion is granted.
I. BACKGROUND
Lillie Lorene Crow ("Lillie Crow") and her husband Doyle G. Crow ("Doyle Crow") have sued United Benefit for breach of the duties of good faith and fair dealing, for violations of the Deceptive Trade Practices — Consumer Protection Act and the Texas Insurance Code, and for intentional infliction of emotional distress. Plaintiffs' Original Petition ("Petition") at 4-10, attached as Exhibit 2 to Notice of Removal. The Crows allege that United Benefit denied or delayed authorization and payment for medical treatment prescribed for Lillie Crow for health problems arising from breast implants. Id. at 2.
The court will refer to Lillie Crow and Doyle Crow collectively as the Crows.
On December 15, 2000, the Crows served upon United Benefit their designation of Quida Peterson as an expert witness on the subject of insurance and the conduct of United Benefit in denying Lillie Crow's claim. Plaintiffs' Agreed Motion for Extension of Time to Provide Expert Witness Reports and Supporting Brief, filed December 15, 2000, at 1-2. United Benefit now moves to exclude Peterson's testimony on the grounds that she is unqualified to render an opinion, that her proffered opinion constitutes a legal opinion and impermissibly invades the province of the court, and that the Crows failed to comply with FED. R. Civ. P. 26. Defendants' Motion to Exclude Expert Testimony and Brief in Support ("Motion"), at 4-10. The Crows' response to the motion was due on February 26, 2001. On March 9, 2001, a full two weeks after a response was due, the parties filed a joint motion requesting, among other things, that the deadline for the Crows to respond to the motion to exclude Peterson be extended until March 26, 2001. The court has denied that joint motion.
The Crows' expert witness designation was due on December 15, 2000. Although United Benefit was served with Plaintiffs' Pretrial Disclosures and Plaintiffs' First Supplemental Designation of Expert Witnesses shortly after the December due date, the Crows failed to file those submissions with the court. The Crows ultimately filed those submissions with the court on March 15, 2001, a full three months after they were due.
II. ANALYSIS
In Daubert, "[t]he Supreme Court held that when expert testimony is offered, the trial judge must perform a screening function to ensure that the expert's opinion is reliable and relevant to the facts at issue in the case." Watkins v. Telsmith, Inc., 121 F.3d 984, 988-89 (5th Cir. 1997) (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,589 (1993)). The proponent of expert testimony has the burden of demonstrating that "(1) the expert is qualified, (2) the evidence is relevant to the suit, and (3) the evidence is reliable." American Tourmaline Fields v. International Paper Company, 1999 WL 242690, *2 (N.D. Tex. 1999) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137,, 119 S.Ct. 1167, 1174 (1999); Watkins, 121 F.3d at 988-89; and Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998) (en banc), cert. denied, 526 U.S. 1064 (1999)). Federal Rule of Evidence 702 provides the standard for relevancy of expert testimony in federal court. That rule provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
F.R. EVID. 702. The decision to admit or to exclude evidence is committed to the sound discretion of the district court. See, e.g., United States v. West, 22 F.3d 586, 591 (5th Cir.), cert. denied, 513 U.S. 1020 (1994).
Thus, when faced with a proffer of expert testimony, a trial judge must first determine whether the expert is proposing to testify to (1) scientific, technical, or specialized knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. See Daubert, 509 U.S. at 590-92 (1993). "Expert testimony which does not relate to any issue in the case is not relevant and, ergo, non-helpful." Id. at 590. In sum, if this court determines that the proffered testimony of Peterson will not assist the factfinder to understand the evidence or to determine a fact in issue, then such testimony is by definition, not relevant (and undoubtedly non-helpful). The court may then, in its sound discretion, exclude that testimony. See, e.g., West, 22 F.3d at 591.
The Crows, pursuant to Federal Rule of Civil Procedure 26(a)(2)(B), have provided United Benefit with a copy of Peterson's expert report in which Peterson sets forth the substance of her opinion regarding the handling of Lillie Crow's medical claims. Letter to Richard G. Danner, Jr. from Quida Peterson dated December 28, 2000 (hereinafter, "Report"), attached as Exhibit A to Motion. In her report, Peterson generally defines the type of insurance company conduct that constitutes a breach of the duty of good faith and fair dealing. She then identifies each of the nineteen actions taken by United Benefit in the Lillie Crow matter which, in her opinion, constituted a breach of the insurer's duty of good faith and fair dealing in this case. Id. at 1-3.
Peterson's report states, "An insurance company breaches the duty of good faith and fair dealing when it fails to pay or allow a claim when it is reasonably clear that the claim should be paid or allowed; or, denies a claim with false reasons; or, fails to make a thorough and in-depth review of the expenses or gather adequate information to make a proper payment determination." Report at 1.
In essence, Peterson's proffered opinion (1) defines the duty of good faith and fair dealing and then (2) applies the facts of the case to the law as she defines it. Peterson's proffered opinion invades both the province of the court and the jury. The first part of Peterson's proposed testimony regarding the definition of the duty of good faith and fair dealing as applied to an insurer resembles nothing so much as a jury instruction. "Our legal system reserves to the trial judge the role of deciding the law for the benefit of the jury." Askanase v. Fatjo, 130 F.3d 657, 673 (5th Cir. 1997) (citing, with approval, Spechit v. Jensen, 853 F.2d 805 (10th Cir. 1988), cert. denied, 488 U.S. 1008 (1989)). "[I]f an expert witness were allowed to testify to legal questions, each party would find an expert who would state the law in the light most favorable to its position. Such differing opinions as to what the law is would only confuse the jury." Id. Peterson's proposed testimony defining the duty of good faith and fair dealing impermissibly intrudes upon the court's duty to instruct the jury as to the appropriate law.
It is the opinion of this court that Peterson's proposed testimony delineating particular breaches of United Benefit's duty of good faith and fair dealing impermissibly invades the province of the jury. Whether United Benefit engaged in conduct constituting a breach of the duty of good faith and fair dealing "is an issue for the trier of fact to decide." Id. "It is not for [Peterson] to tell the trier of fact what to decide." Id. See also Sowell v. United States, 1998 WL 531884 (N.D. Tex. 1998) (an expert's legal opinion regarding the ultimate issue of reasonableness of a fiduciary's conduct was correctly excluded and did not present grounds for granting a new trial), aff'd, 198 F.3d 169 (5th Cir. 1999). "[W]here as here expert testimony is offered on an issue that a jury is capable of assessing for itself, it is plainly within the trial court's discretion to rule that testimony inadmissible because it would not even marginally `assist the trier of fact,' while it must be viewed as a `needless presentation' (F.R. EVID. 403). . . ." Thompson v. State Farm Fire and Casualty Company, 34 F.3d 932, 941 (10th Cir. 1994) (excluding testimony from an expert in bad faith denial and investigation of insurance claims which compared to the industry standard and the laws of Oklahoma State Farm's actions in denying a claim.)
III. CONCLUSION
Peterson's proposed testimony impermissibly usurps the role of the court in defining the law for the jury and the jury's role in applying the law to the facts. Because her testimony will not assist the trier of fact to understand the evidence or to determine a fact in issue, it is not relevant within the meaning of Federal Rule of Evidence 702 or Daubert and should be excluded on that basis. United Benefit's motion to exclude Peterson's testimony is therefore GRANTED.
Because the court finds that Peterson's testimony should be excluded as an invasion of the province of the court and jury, it need not address United Benefit's other contentions that Peterson is not qualified to testify as an expert and that the Crows have violated their Rule 26 disclosure obligations.