EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, March 21, 2022

Eastern District of California Finds Expert Testimony Based on Inadmissible Evidence Admissible in Insurance Dispute

Federal Rule of Evidence 703 provides that

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect (emphasis added). 

So, what facts or data do experts in a particular field rely on in forming opinions? The recent opinion of the United States District Court for the Eastern District of California in Burns v. Progressive Casualty Insurance Company, 2022 WL 827036 (E.D.Cal. 2022), provides one example.

In Burns

[Paul] Burns bought his boat in 2008....He took good care of it-changing the fluids regularly, preparing it for winter each year, fastening its rain cover over the top when he stored it outdoors....He last used it in July 2016....He prepared it for the winter and stored it outdoors with the cover on....Then he left. Fall, winter, and spring passed, and when he returned the next summer, the boat was full of rainwater....Critical components had corroded.

Burns thereafter made a claim under his insurance policy with Progressive which stated, inter alia, "[c]overage...will not apply for loss...caused directly or indirectly by...gradual deterioration of any kind including, but not limited to, weathering, rust, corrosion, mold, wet or dry rot, osmosis, delamination, or blistering." 

When Progressive denied Burns's claim, he brought a civil action against the company. In moving for summary judgment, Progressive cited

the opinion of an expert, John Kelly, with decades of experience in boats and marine engines....Kelly concluded that the damage occurred over a “lengthy period of time”; some problems took “several months” to develop.

In overruling Burns's objection to Kelly's opinion, the court ruled as follows:

Burns first objects that other experts would not rely on the materials Kelly cites, which materials, he argues, are inadmissible in any event....It would be reasonable for an expert in Kelly's field to rely on the materials he reviewed, including pleadings and discovery responses, photographs of the boat, diagrams and documents from the boat's owner's manual, and the deposition testimony of a man at the repair shop that issued an estimate of the damages. See Kelly Decl. ¶ 23; Fed. R. Evid. 104(a) (“The court must decide any preliminary questions about whether a witness is qualified...[or] evidence is admissible.”); Fed. R. Evid. 703 (“An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed.”). These materials “need not be admissible.”



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