Originally published in Insurance Law360 - December 5, 2011.

These days, no one is surprised to see a bad faith expert listed on expert designations in insurance coverage litigation involving allegations of bad faith. While lawyers on both sides of the dispute routinely engage bad faith experts, there is still uncertainty regarding the proper scope of a bad faith expert’s testimony.

The United States Supreme Court first examined the admissibility of “expert” testimony in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590 (1993). Daubert established that the trial judge must act as a “gatekeeper” by ensuring that an expert’s testimony is based on a reliable foundation and is relevant to the question before the trier of fact.

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