The Use And Misuse Of Expert Testimony In Bad Faith Actions

Modern trials are frequently battles of experts hired by the parties to advocate their respective positions. Bad faith actions are no different. The plaintiff and the insurer will both beat the bushes for claims handlers or attorneys who are experienced in the customs and practices relating to the insurance claims at issue in the case and who are willing to serve as persuaders for the party by whom they were retained. Disputes regarding the admissibility of this expert testimony are the rule rather than the exception.

The infinite variety of bad faith claims and substantive and procedural rules applicable in different venues precludes an all-encompassing view of approaches used by the courts in their role of "gatekeepers" regarding admission of expert testimony. This article, therefore, will discuss the general rules regarding expert testimony; the application of those rules to bad faith actions; and then present a potpourri of various issues regarding experts in bad faith litigation, with an emphasis on providing guidance for the preparation and trial of a bad faith case.

Originally published in Insurance Coverage Litigation Committee CLE Seminar on May 2, 2013.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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