Judge Rejects Defense’s Daubert Challenge to Subrogating Carrier’s Experts

Most of you have heard about the US Supreme Court’s 1993 Daubert decision[1] , in which the court set forth the criteria witnesses must meet before being allowed to testify as “experts” in federal court. [2]  Daubert is a new favorite of the defense bar in property subrogation litigation as it allows the defense to try to “win” a subrogation claim by getting the subrogating carrier’s expert barred from testifying – which oftentimes leads to the entire case getting dismissed and preventing a jury from considering the case.  Most courts have rejected Daubert challenges in fire subrogation matters, so long as plaintiff’s counsel submits sufficient proof that the expert is well-qualified in the field and used sound methodology (i.e., NFPA 921 or other relevant guidance).  It is incumbent upon Plaintiff’s counsel to fight such challenges vigorously, including drafting – in consultation with the expert – a detailed affidavit for the witness to lay out in detail his/her qualifications and the methodology used in performing the fire investigation or evidence exam.  In the few cases I’ve seen where courts have granted Daubert motions, it appears from the record that Plaintiff’s counsel did not submit sufficient proof to fight off the motion.   Usually, where the defense faults the subrogating carrier expert’s investigation, the court normally will deny the motion and allow the defense to raise their objections through cross-examination at trial.

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Judge Joins Subrogation Action with the Separate Action Filed by the Insured

Often, the insured will claim to have suffered damages above and beyond what they were paid by their insurance company (I call these “uninsured losses”). In some instances, so long as there is consent, one attorney will represent both the subrogating carrier and the insured. In other instances, the insured will retain separate counsel. If separate counsel is retained, the subrogating carrier will file one lawsuit and the insured will file a separate lawsuit against the same defendant(s).

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New York State versus Federal Expert Disclosure

As I’ve written in this column previously, one of the advantages of litigating a subrogation claim in New York state court (versus federal) is expert disclosure.  In state practice, in order to have an expert testify at trial, all an attorney need do is comply with CPLR 3101(d).  This provision requires only that you disclose a short setting forth “in reasonable detail”:

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