UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

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1 Case 1:11-cv SCJ Document 118 Filed 12/10/12 Page 1 of 8 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION EDWARD BRANDON NOE, Plaintiff, CIVIL ACTION No. 1:11-cv SCJ v. METROPOLITAN GENERAL INSURANCE COMPANY, Defendant. O R D E R This matter is before the Court on Defendant Metropolitan General Insurance Company s ( Defendant ) Motion to Exclude Certain Opinions and Testimony of Plaintiff s Expert Witness Louis G. Fey, Jr. [Doc. No. 93]. For the reasons explained in this order, Defendant s motion is DENIED. I. FACTUAL AND PROCEDURAL BACKGROUND Plaintiff Edward Brandon Noe ( Plaintiff ) was involved in a motor vehicle accident with Richard Hobbs on June 7, Mr. Hobbs sustained severe injuries as a result of the accident, necessitating a significant amount of medical expenses. Plaintiff had an insurance policy with Defendant which had an individual personal injury liability limit of $50,000. On December 3, 2008, Mr. Hobb s attorney contacted Defendant, with a time-limited demand, offering to settle Mr. Hobb s

2 Case 1:11-cv SCJ Document 118 Filed 12/10/12 Page 2 of 8 personal injury claim against Plaintiff for the policy limit of $50,000. Along with this offer, Mr. Hobb s attorney provided Defendant with documentation of Mr. Hobb s medical expenses, an accident report, pictures of the accident scene and Mr. Hobb s injuries, and a wage and salary verification form. Defendant, without notifying Plaintiff, rejected this offer and made a counter offer of $18,000 with a request for additional medical and wage information. Unsatisfied with Defendant s counter offer, Mr. Hobbs filed suit (the Underlying Suit ) on January 15, Near the end of discovery in the Underlying Suit, Defendant made a settlement offer of $50,000. This offer was rejected and judgment was entered against Plaintiff in the Underlying Suit in the amount of $650,000. In this action, Plaintiff claims Defendant was negligent for failing to accept the December 3, 2008 offer to settle the personal injury claim for $50,000, an amount within Plaintiff s insurance policy limit. Defendant asserts it did not have sufficient information to evaluate the claim as a policy limits case. To support his argument that Defendant did have sufficient information to accept the December 3, 2008 settlement offer, Plaintiff proffers the testimony of Louis G. Fey, Jr., who is currently employed as a consultant in the insurance industry, as an expert on handling insurance for personal injury claims. Mr. Fey offers his opinion that, based on the -2-

3 Case 1:11-cv SCJ Document 118 Filed 12/10/12 Page 3 of 8 general practice in the insurance field, Defendant unreasonably rejected Mr. Hobb s December 3, 2008 settlement offer and that Defendant s counter offer of $18,000 was also unreasonable. In its motion to exclude Mr. Fey s testimony, Defendant maintains Mr. Fey is not qualified as an expert, and his opinions are unreliable and speculative, unsupported by scientific study, peer review or reliable basis, and with no showing of general acceptance in the third-party personal automobile claims community [Doc. No. 93]. In response, Plaintiff argues Mr Fey s more than 30 years of experience in the insurance industry qualifies him as an expert, that his opinion is sufficiently reliable, and that his opinion will assist the trier of fact. II. DISCUSSION A. Legal Standard To determine the admissibility of expert testimony, a district court must first look to Rule 702 of the Federal Rules of Evidence. That rule provides: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other 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. -3-

4 Case 1:11-cv SCJ Document 118 Filed 12/10/12 Page 4 of 8 Fed. R. Evid. 702(a)-(d). Under this rule, a district court acts as an evidentiary gatekeeper that ensures any and all scientific testimony or evidence admitted is not only relevant, but reliable. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589, 113 S. Ct. 2786, 2795 (1993). In essence, in order to assist district courts in fulfilling their gate-keeping function, the United States Supreme Court established in Daubert a two-pronged analysis, used to determine the admissibility of the proffered expert testimony on scientific issues under Rule 702. McDowell v. Brown, 392 F.3d 1283, 1298 (11th Cir. 2004). Under the first prong, a district court must determine that the scientific, technical or other specialized knowledge is sufficiently reliable. See Daubert, 509 U.S. at 590, 113 S. Ct. at 2795; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 148, 119 S. Ct. 1167, 1175 (1999) (holding that the gate-keeping function established in Daubert is not limited to scientific knowledge but also applies to technical and specialized knowledge). To determine an expert s reliability, a district court may consider the following four non-exhaustive factors provided by the Supreme Court: (1) Testability of the theory or technique; (2) whether or not there is a known or potential rate of error; (3) whether the theory or technique has been subjected to peer review; and (4) whether the theory has received general acceptance in the relevant -4-

5 Case 1:11-cv SCJ Document 118 Filed 12/10/12 Page 5 of 8 community. Butler v. First Acceptance Ins. Co., Inc., 652 F. Supp. 2d 1264, 1271 (N.D. Ga. 2009) (citing Daubert, 509 U.S. at , 113 S. Ct. at 2786). Under the second prong, a district court must determine that the proposed testimony is sufficiently relevant. Daubert, 509 U.S. at 591, 113 S. Ct. at Expert testimony is considered relevant when it logically advances a material aspect of the proposing party's case. Allison v. McGhan Med. Corp., 184 F.3d 1300, 1312 (11th Cir. 1999) (quotations and citation omitted). However, before addressing the two pronged reliability and relevancy analysis established in Daubert, a district court must first determine that the expert in question is sufficiently qualified. The clear language of Rule 702 establishes an expert s testimony may be based on his knowledge, skill, experience, training, or education. Fed. R. Evid Furthermore, district courts must take a liberal view on the qualifications of an expert witness under Rule 702. Leathers v. Pfizer, Inc., 233 F.R.D. 687, 692 (N.D. Ga. 2006). In summary, an expert s testimony is admissible when: (1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusion is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue. -5-

6 Case 1:11-cv SCJ Document 118 Filed 12/10/12 Page 6 of 8 Allison, 184 F.3d at B. Analysis In reviewing Mr. Fey s expert report, the Court is satisfied that Mr. Fey is qualified as an expert on insurance claim adjustments. Specifically, the Court notes that Mr. Fey has over 30 years experience in the insurance industry, is a licensed insurance adjuster in both Florida and Louisiana, was previously licensed in Texas, and has experience evaluating and supervising automobile insurance claims in Georgia. In short, Mr. Fey has sufficient knowledge and experience in the insurance claim field to qualify as an expert. The Court further believes that Mr. Fey s opinions are sufficiently reliable. Defendant argues Mr. Fey s opinion is only based on his own ipse dixit because there is no other peer review, publication or outside source supporting, outlining or examining his opinions on his formula for responding to time limited demands [Doc. No. 93-2, 17]. The Court is unpersuaded by this argument. Along with his experience, Mr. Fey outlines his access to industry resources and other research tools, which he used in formulating his opinion, to show his opinion is reliable. Defendant s argument that Mr. Fey s methodology is flawed because it does not specifically highlight which outside sources validate his opinion is misplaced. The -6-

7 Case 1:11-cv SCJ Document 118 Filed 12/10/12 Page 7 of 8 Court does not believe such a level of specificity is required to show Mr. Fey s opinion is reliable. The Court notes that an inquiry under Rule 702 regarding the reliability of an expert s opinion must be a flexible one. Daubert, 509 U.S. at 594. Because this inquiry is flexible, there is not a definitive checklist or test to determine whether an expert s testimony is reliable. Id. at 593. Noting the flexible standard established in Daubert, the Court finds Mr. Fey s opinion to be sufficiently reliable. Specifically, Mr. Fey articulates that [i]ndustry best practices establish that [a]t no time should the adjuster make a counter offer, effectively rejecting the policy/time limit demand, unless the adjuster has all information necessary to complete the evaluation of the claim [Doc. No. 93-1, 7]. Based on the facts at issue in this action, and because Mr. Fey s expert report shows his opinion that Defendant s conduct was improper is based on accepted industry standards, the Court does not need to address each Daubert factor to determine Mr. Fey s opinion is reliable. Kumho Tire Co., 526 U.S. at 153 ( [W]hether Daubert's specific factors are, or are not, reasonable measures of reliability in a particular case is a matter that the law grants the trial judge broad latitude to determine. ). Furthermore, the weaknesses in the underpinnings of the expert's opinion go to its weight rather than its admissibility. Vision I Homeowners Ass n, Inc. v. Aspen Specialty Ins. Co., 674 F. Supp. 2d 1321, 1325 (S.D. Fla. 2009). -7-

8 Case 1:11-cv SCJ Document 118 Filed 12/10/12 Page 8 of 8 Therefore, any perceived flaws in Mr. Fey s methodology can be pointed out by Defendant during cross-examination. Mr. Fey s opinion is also relevant because it is material to Plaintiff s case and concerns matters that are beyond the understanding of the average lay person. U.S. v. Frazier, 387 F.3d 1244, 1262 (11th Cir. 2004). Mr. Fey s testimony concerning insurance claim adjustments is outside the common knowledge of an average juror. In summary, Mr. Fey s expert testimony would assist the jury in deciding factual issues in this action and is therefore relevant. Accordingly, Defendant s motion to exclude Mr. Fey s testimony is DENIED. III. CONCLUSION For the above stated reasons, Defendant s Motion to Exclude Certain Opinions and Testimony of Plaintiff s Expert Witness Louis G. Fey, Jr. [Doc. No. 93] is hereby DENIED. SO ORDERED, this 7 th day of December, s/steve C. Jones STEVE C. JONES United States District Judge -8-

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