Bankers' protest of defendant’s witnesses rebuffed by federal judge

By Sandra Lane | Sep 22, 2018

MIAMI – When opposing sides in a lawsuit want to question the reliability of witnesses or evidence presented by the other side, they may invoke the Daubert motion.  According to U.S. Legal, “A Daubert motion is a special case of motion in limine raised before or during trial to exclude the presentation of unqualified evidence to the jury.”

Judge Edwin G. Torres, U.S. District Court, Southern District of Florida, reviewed such a motion on Sept. 12 in a lawsuit filed by a bank, seeking damages for an insurance company’s failure to provide the proper liability insurance. 

Judge Torres ruled, “After careful review of the motion, response, reply, relevant authority, and for the reasons discussed below, Plaintiffs’ Daubert motion is denied.”

Questions about the reliability and expertise of two witnesses had been raised by Michael I. Goldberg and Robert C. Furr, who had filed suit against Aon Risk Services Northeast for failure to provide them with the protection of a proper liability insurance policy after Gibraltar Bank & Trust was sold in 2009. Such a policy would protect them and the bank from any liability incurred before they took over management.

Plaintiffs also alleged that the insurance secured by Aon left Gibraltar’s D&Os without adequate insurance. They stated that the policies did not cover any failures to comply with banking regulations, federal laws, or regulations enacted to prevent financial crimes.

In support of its defense, Aon had secured the testimonies of two insurance “experts,” Scott Stein and Frederick Fisher. In lodging a Daubert motion concerning these two witnesses, plaintiffs alleged that Stein had no experience with D&O policies for either public or private banks and that Fisher was likewise unqualified.

However, Judge Torres made a different assessment of these two witnesses’ qualifications.  As quoted in his ruling, he said, “After a thorough review of the arguments presented, Plaintiffs’ motion to exclude Mr. Stein and Mr. Fisher on the basis that they are unqualified lacks merit. Both Mr. Stein and Mr. Fisher have significant experience in the insurance industry, and both relied on extensive documents, articles, and publications in forming their opinions.”

In conclusion, Judge Torres said, “For the foregoing reasons, Plaintiffs’ Daubert motion to exclude the testimony of Mr. Stein and Mr. Fisher is denied.”

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