Liberty Life Ins. Co. v. Myers
| Decision Date | 11 February 2013 |
| Docket Number | No. CV 10-2024-PHX-JAT,CV 10-2024-PHX-JAT |
| Parties | Liberty Life Insurance Company, Plaintiff, v. Eric L. Myers, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
Pending before the Court is Liberty Life Insurance Company's ("Liberty Life") Motion to Exclude Purported Expert Opinions of Robert Comeau. (Doc. 226). Defendants Anne Myers ("Anne"), Erin Myers Stoloff ("Erin"), and Kirsten Myers Ruggiano ("Kirsten") have filed a Response (Doc. 243) and Plaintiff has filed a Reply (Doc. 249).
In June 1991, Defendant Eric L. Myers ("Eric") attended a conference in San Diego, California. Eric did not return to his home in Prescott, Arizona, following the conference. Investigations into his whereabouts and fate were conducted by the San Diego and Prescott Police Departments. Eric's father, Defendant Donald Myers ("Donald") also hired a private investigator to find Eric. All of the investigations wereunsuccessful.
Prior to disappearing, in 1989, Eric updated and increased his life insurance coverage with Liberty Life. In 1993, after no sign of Eric had been found, Donald was named a special conservator of Eric's life insurance policy for the purpose of changing the beneficiaries of the policy to Erin and Kirsten. In 1996, Donald applied for a presumptive death certificate with the State of Arizona after investigations failed to turned up any sign of where Eric was or that he was still alive. In 1997, a presumptive death certificate for Eric was issued by the State of Arizona. Days later, Donald submitted a claim to Liberty Life requesting Plaintiff pay the death benefits under Eric's policy. Liberty Life conducted its own investigation and also concluded that Eric was dead.
In 1998, Liberty Life paid $870,103.80 pursuant to the terms of Eric's policy. Donald directed the Death Benefit Proceeds ("Proceeds") to be paid equally to the Erin Myers Trust dated August 13, 1993 and to the Kirsten Myers Trust dated August 13, 1993 (collectively the "Trusts"). Donald served as trustee for the Trusts.
On October 2, 2007, Eric returned and made his existence known to Donald, Erin, and Kirsten. As of that date, the Trusts still contained $478,651 between them. After Eric resurfaced, Donald communicated with Anne, who is a lawyer, about any potential claim Liberty Life may have to the Proceeds left in the Trusts. Donald came to the conclusion that it was safe to give Erin and Kirsten the remaining Proceeds. No party informed Liberty Life that Eric was still alive.
In January 2008, Donald distributed almost all of the remaining funds in the trusts to Erin and Kirsten. In April 2009, Donald distributed the remaining funds in the trusts to Erin and Kirsten. In March 2009, Eric filed a petition to expunge his death certificate with the State of Arizona. In November 2009, Liberty Life was notified of Eric's existence by the State of Arizona.
In September 2010, Liberty Life filed a Complaint (the "Complaint") asserting claims against Eric, Donald, Erin, Kirsten, and the Trusts. (Doc. 1). During discovery, on December 2, 2011, Defendants Donald, his wife Joan Myers ("Joan"), and Brooke MyersWilson who is no longer a party to this case, disclosed that they intend to call Robert Comea, a former business executive in the insurance industry, as an expert witness at trial to offer opinion testimony pursuant to Federal Rules of Evidence 702, 704, and 705. (Doc. 226-1 at 3-4); (Doc. 173). Liberty Life filed this motion to exclude Mr. Comeau's opinions on March 30, 2012. (Doc. 226).
Federal Rules of Evidence 702, 704, and 705, concern the testimony of expert witnesses. In Plaintiff's Motion to Exclude Expert Opinion, Liberty Life challenges the admissibility of Mr. Comeau's expert testimony. (Doc. 226 at 1). Liberty Life argues that Mr. Comeau's written report dated November 30, 2011 (the "Comeau Report") (Doc. 226-1 at 5-51), and any testimony based on the report are inadmissible expert testimony under Federal Rule of Evidence 702. (Doc. 226 at 1).
Rule 702 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, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Fed. R. Evid. 702. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993) ("Daubert I"), the Supreme Court held that Rule 702 imposed a special gatekeeping obligation upon a trial judge to make a preliminary assessment of the admissibility of expert scientific testimony. Specifically, the Court held that under Rule 702, "the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Id. at 589. In making this determination, the trial court engages in a two-part inquiry. First, the court must determine whether the expert's testimony reflects "scientific knowledge," that is, "whether their findings are 'derived byscientific method,' and whether their work product amounts to 'good science.'" Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1315 (9th Cir. 1995) ("Daubert II"). Second, the court must determine whether the proffered expert testimony is relevant, "i.e., that it logically advances a material aspect of the proposing party's case." Id. Essentially, under Daubert, the trial court's task "is to analyze not what experts say, but what basis they have for saying it." Id. at 1316.
"[T]he question of admissibility only arises if it is first established that the individuals whose testimony is being proffered are experts in a particular [ ] field." Id. at 1315. Thus, as an initial matter, the trial court must determine whether the proffered witness is qualified as an expert by "knowledge, skill, experience, training or education." Fed. R. Evid. 702. To satisfy this standard, it is essential that "the proposed witness's qualifying training or experience, and resultant specialized knowledge, are sufficiently related to the issues and evidence before the trier of fact [such] that the witness's proposed testimony will be of assistance to the trier of fact." 3 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence, ^ 702[04][1][b], p. 702-45 ().
Next, the trial court must ensure that the proffered expert testimony is reliable. Generally, to satisfy Rule 702's reliability requirement, "the party presenting the expert must show that the expert's findings are based on sound science, and this will require some objective, independent validation of the expert's methodology." Daubert II, 43 F.3d at 1316. Toward this end, the Supreme Court in Daubert I set forth the following factors for the trial court to consider when assessing the reliability of proffered expert testimony. First, "a key question to be answered in determining whether a theory or technique is [ ] knowledge that will assist the trier of fact will be whether it can be (and has been) tested."509 U.S. at 593. Second, the Court looks at whether the theory or technique has been subjected to peer review and publication. Id. Because publication in a peer-reviewed journal increases the likelihood that substantive flaws in the technique will be detected, "[t]he fact of publication (or lack thereof) . . . will be a relevant, though not dispositive consideration in assessing the scientific validity of a particular technique or methodology on which an opinion in premised." Id. at 594. Third, "in the case of a particular scientific technique, the court ordinarily should consider the known or potential rate of error . . . and the existence and maintenance of standards controlling the technique's operation[.]" Id. (internal citations omitted.) Fourth, the Court considers the degree of acceptance of the method or technique within the relevant scientific community. Id. In engaging in this analysis, the trial court should be mindful that:
The inquiry envisioned by Rule 702 is . . . a flexible one. Its overarching subject is the scientific validity and thus the evidentiary relevance and reliability-of the principles that underlie a proposed submission. The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.
Id. at 594-95 (footnotes omitted).
It is also well-settled that the four Daubert factors—testing, peer review, error rates, and acceptability in the relevant scientific community—are merely illustrative, not exhaustive, and may be inapplicable in a given case. Daubert II, 43 F.3d at 1317. For instance, the Ninth Circuit has advised that a trial court may also question whether the expert is proposing to testify about matters "growing naturally and directly out of the research they have conducted independent of the litigation, or whether they have developed their opinions expressly for the purposes of testifying" as another significant inquiry weighing on reliability. 43 F.3d at 1317. "That the testimony proffered by an expert is based directly on legitimate, preexisting research unrelated to the litigation provides the most persuasive basis for concluding that the opinions he expresses were 'derived by the scientific method.'" Id.
Accordingly, "[e]stablishing that the an expert's proffered testimony grows out ofpre-litigation research or that the expert's research has been subjected to peer review are the two principal ways the proponent of...
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