Talmage v. Harris

United States District Court for the Western District of Wisconsin · Evidence

Evidenceexpert testimonyRule 702DaubertKumho Tirelegal malpracticebad faith insurancequalification of experts

Facts

Plaintiff sued his former attorney and law firm for legal malpractice, alleging they failed to pursue a bad faith claim against his insurer before the two-year statute of limitations expired. Plaintiff designated attorney Russell Bohach to testify that the insurer had acted in bad faith and that defendants were negligent in failing to pursue the claim, and CPA Dennis Kleinheinz to calculate plaintiff's economic damages. Defendants argued Bohach lacked sufficient expertise under Rule 702 and Daubert, and argued Kleinheinz should be excluded because he assumed causation and used flawed methods in computing damages. Kleinheinz's report expressly assumed causation and limited his analysis to calculating damages amounts.

Issue

Whether the plaintiff's attorney expert was sufficiently qualified under Rule 702 and Daubert/Kumho to testify about the reasonableness of the insurer's conduct and the defendants' alleged negligence, and whether the plaintiff's damages expert should be excluded because he assumed causation and used disputed calculation methods.

Rule

Under Rule 702 and Daubert/Kumho, expert testimony is admissible if it is reliable and will assist the trier of fact, and a court may consider the witness's qualifications in determining whether the opinion is truly informed by special skill, knowledge, or experience. Where an expert's opinions rest on assumptions such as causation, attacks on the truth of those assumptions or on the persuasiveness of the expert's calculations generally go to the weight and credibility of the testimony rather than its admissibility.

🔒

See the holding & full analysis

Create a free KwikCourt account to unlock the rest of this brief — and practice the case.

The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case

Free sample · practice this case

Test yourself

One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a legal-malpractice suit in federal court in Milwaukee, Dana Mercer alleges her former lawyer let a bad-faith claim against her insurer lapse after the insurer delayed paying a routine theft claim. Dana offers Owen Price, a lawyer who spent 22 years defending insurers, worked with adjusters on claims investigations, and regularly teaches continuing-education programs on insurer bad faith, but he has never been employed as a claims adjuster.

Should the court exclude Owen's testimony on whether the insurer acted unreasonably solely because he has never worked as a claims adjuster?

Explanation. The majority held that a lawyer with substantial insurance-law experience, including work related to claims adjustment and bad-faith litigation, could testify about the reasonableness of an insurer's conduct even though he was not an expert fire-loss adjuster. Under Rule 702 and Daubert/Kumho, the question is whether the opinion is informed by special skill, knowledge, or experience and will assist the trier of fact, not whether the witness has the narrowest possible specialty. (Derived from Talmage v. Harris (n.d.).)