Metropolitan Life Insurance Company v. Liebowitz

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

METROPOLITAN LIFE INSURANCE

COMPANY,

Plaintiff,

v. Case No: 2:20-cv-276-JES-MRM

FRED A. LIEBOWITZ,

Defendant.

OPINION AND ORDER

This matter comes before the Court on review of plaintiff

Metropolitan Life Insurance Company’s Motion to Strike Testimony

of William Tharpe, Esq. (Doc. #82) filed on July 21, 2021.

Defendant Fred A. Liebowitz filed a Response (Doc. #88) on August

23, 2021. For the reasons set forth below, the motion is granted.

I.

The Court previously described the factual and procedural

history of this case as follows:

Plaintiff Metropolitan Life Insurance Company

(plaintiff or MetLife) initiated this matter by filing

a one-count Complaint against defendant Fred A.

Liebowitz (defendant or Dr. Liebowitz). (Doc. #1.) The

Complaint alleges that Dr. Liebowitz is a pain

management physician who filed an application with

MetLife for a disability insurance policy in January

2015. (Id. ¶ 5.) MetLife approved Dr. Liebowitz for

coverage and issued him a disability policy (the

Policy). (Id. ¶ 6.)

The Complaint alleges that in December 2018 Dr.

Liebowitz submitted a claim under the Policy for an ankle

injury. (Id. ¶ 15.) During its investigation of this

claim, MetLife discovered what it believes to be false

information or omissions in the application filed by Dr.

Liebowitz regarding his financial, occupational, and

professional status. (Id. ¶¶ 10-12, 15.) Specifically,

the Complaint alleges Dr. Liebowitz failed to advise

MetLife that he was the subject of multiple Florida

Department of Health (DOH) investigations for improperly

prescribing narcotics to patients. (Id. ¶ 12.) These

investigations would subsequently lead to the DOH

issuing a reprimand against Dr. Liebowitz’s license,

imposing a fine and costs, and restricting Dr. Liebowitz

from prescribing controlled substances. (Id. ¶ 14.)

In response to learning these facts, MetLife

returned all premiums paid by Dr. Liebowitz with respect

to the Policy, with interest. (Id. ¶ 22.) Dr. Liebowitz

rejected the tendered refund. (Id.)

The Complaint seeks “rescission of the Policy

pursuant to Fla. Stat. § 627.409 and Florida law.” (Id.

¶ 9.) According to the Complaint, MetLife (1)

justifiably relied on Dr. Liebowitz’s fraudulent

misrepresentations and omission of material facts in the

application, and (2) would not have issued the Policy

had it known the true facts. (Id. ¶¶ 17, 18.) The

Complaint asserts the Policy “is void ab initio under

Florida common law and pursuant to Fla. Stat. § 627.409.”

(Id. ¶ 19.) Federal jurisdiction is premised on

diversity of citizenship pursuant to 28 U.S.C. § 1332.

(Id. ¶ 1.)

Dr. Liebowitz filed a Second Amended Answer,

Affirmative Defenses and Counterclaim. (Doc. #32.) Dr.

Liebowitz’s two-count Counterclaim seeks declaratory

relief as to whether, among other things, MetLife had

the right to unilaterally rescind the Policy and whether

MetLife must honor the Policy by payment of disability

benefits. (Id. ¶¶ 1, 27.) Dr. Liebowitz seeks a

declaration that “the disability policy issued to [him]

by MetLife to be in full force and effect.” (Id. at ¶

27.)[1]

(Doc. #54, pp. 1-3 (footnote omitted)).

In February 2021, the parties filed a joint motion to

bifurcate the discovery and trial in this case into two phases.

(Doc. #43.) The first phase would determine whether the disability

policy exists, i.e., the “coverage” issue, and the second phase

would determine what residual benefits were due to Dr. Liebowitz

if coverage existed, i.e., the “damages” issue. (Id. pp. 1-2.)

The parties agreed that “the Court is to resolve the coverage issue

without a jury if bifurcation is granted.” (Id. p. 10.) The Court

granted the motion and bifurcated the matter. (Doc. #44.)

Accordingly, the coverage issue will be decided by the Court

without a jury.

Now at the summary judgment stage, MetLife has filed the

instant motion seeking to strike Dr. Liebowitz’s expert witness,

William Tharpe. (Doc. #82.) To understand the motion, some

background is necessary. When Dr. Liebowitz applied for the

disability policy, he answered various questions regarding his

occupational status and financial stability. (Doc. #72-2, pp.

237, 241.) One such question was as follows:

1 Dr. Liebowitz has since filed a Third Amended Answer,

Affirmative Defenses, and Counterclaim (Doc. #58), but the

differences between second and third versions are negligible.

17. Have you EVER had a professional license suspended,

revoked, or is such license under review or have you

ever been disbarred? If YES, give details below.

(Id. p. 241.) At the time of the application, Dr. Liebowitz had

apparently been named a respondent to several administrative

complaints filed against him by the Florida Department of Health

alleging various statutory violations. (Doc. #74-3, p. 102.)

Despite this, Dr. Liebowitz answered “No” to the above question.

(Doc. #72-2, p. 241.) MetLife asserts this answer constitutes a

fraudulent misrepresentation and grounds for rescission of the

policy. (Doc. #1, pp. 2-5.) Dr. Liebowitz has denied making any

misrepresentation (Doc. #58, ¶ 12), and in support has offered the

opinion of Tharpe.

Tharpe is a former employee of the Florida Department of

Financial Services who “probably oversaw more than a thousand

administrative proceedings” brought against a licensee in his

twenty-year employment. (Doc. #74-3, pp. 99, 100.) Based on his

experience as an administrative lawyer and knowledge of the

relevant statutes, Tharpe offers two opinions relevant to this

motion. First, Tharpe opines that the question of whether an

insurance applicant’s professional license is “under review” is

inherently ambiguous because there is nothing in the relevant

Florida statutes to define this term. (Id. p. 104.) Second,

Tharpe asserts that “the most reasonable interpretation for

question 17 above is that a professional license is only under

review . . . when a Recommended Order has been submitted to an

agency head pertaining to the possible discipline of the

professional license holder.” (Id. p. 105.) If the administrative

proceeding against Dr. Liebowitz had not progressed to the point

that a recommended order was before the agency head to review for

entry of a final order, Tharpe “can find no fault with the negative

answer Dr. Liebowitz gave to application question 17.” (Id. p.

110.) MetLife’s motion seeks to preclude Tharpe from testifying

as to these opinions pursuant to Rule 702 of the Federal Rules of

Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S. 579 (1993). (Doc. #82.)

II.

The admission of expert testimony is governed by Rule 702,

which provides that:

A witness who is qualified as an expert by knowledge,

skill, experience, training, or education may testify in

the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or

other specialized knowledge will help the

trier of fact to understand the evidence or to

determine a fact in issue;

(b) the testimony is based on sufficient

facts or data;

(c) the testimony is the product of reliable

principles and methods; and

(d) the expert has reliably applied the

principles and methods to the facts of the

case.

Fed. R. Evid. 702. Rule 702 contemplates that the district court

serve as gatekeeper for the admission of scientific testimony in

order to ensure that any and all expert testimony is both relevant

and reliable. Daubert, 509 U.S. at 589; Tampa Bay Water v. HDR

Eng’g, Inc., 731 F.3d 1171, 1183 (11th Cir. 2013). “The Supreme

Court did not intend, however, that the gatekeeper role supplant

the adversary system or the role of the jury: vigorous cross-

examination, presentation of contrary evidence, and careful

instruction on the burden of proof are the traditional and

appropriate means of attacking shaky but admissible evidence.”

McDowell v. Brown, 392 F.3d 1283, 1299 (11th Cir. 2004) (marks and

citations omitted).

In determining the admissibility of expert testimony under

Rule 702, the Court applies a “rigorous” three-part inquiry.

United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (en

banc). Expert testimony is admissible if (1) the expert is

qualified to testify on the topic at issue, (2) the methodology

used by the expert is sufficiently reliable, and (3) the testimony

will assist the trier of fact. Arthrex, Inc., v. Parcus Med.,

LLC, 2014 WL 3747598, *1 (M.D. Fla. July 29, 2014) (citing Tampa

Bay Water, 731 F.3d at 1183). The burden of laying the proper

foundation for the admission of expert testimony “is on the party

offering the expert, and the admissibility must be shown by a

preponderance of the evidence.” Kilpatrick v. Breg, Inc., 613

F.3d 1329, 1335 (11th Cir. 2010) (quoting McCorvey v. Baxter

Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir. 2002)). The

admission of expert testimony is a matter within the discretion of

the district court, which is accorded considerable leeway in making

its determination. Frazier, 387 F.3d at 1258.

As an initial matter, the Court notes that Tharpe’s opinion

is relevant to the issue of coverage, which is to be determined by

bench trial. (Doc. #43; Doc. #44.) “When a matter is set for a

bench trial . . . the Eleventh Circuit has commented that ‘[t]here

is less need for the gatekeeper to keep the gate when the

gatekeeper is keeping the gate only for himself.’” Apple Glen

Invs., L.P. v. Express Scripts, Inc., 2015 WL 3721100, *2 (M.D.

Fla. June 15, 2015) (quoting United States v. Brown, 415 F.3d 1257,

1269 (11th Cir. 2005)). In fact, “[w]here a trial judge conducts

a bench trial, the judge need not conduct a Daubert (or Rule 702)

analysis before presentation of the evidence,” although the judge

“must determine admissibility at some point.” Adams v. Paradise

Cruise Line Operator Ltd., Inc., 2020 WL 3489366, *3 (S.D. Fla.

June 26, 2020) (citation omitted); see also N.W.B. Imports &

Exports Inc. v. Eiras, 2005 WL 5960920, *1 (M.D. Fla. Mar. 22,

2005) (“Because this is a non-jury trial, the gatekeeping purpose

of Daubert is not implicated. The Court will therefore receive

[the] testimony, make a final admissibility decision and, if

admissible, accord it the weight, if any, it deserves.” (footnotes

omitted)). Nonetheless, “courts may still go through the

individual analyses of the experts or motions, and have granted

these motions to strike prior to the bench trial.” Adams, 2020 WL

3489366, *3 (citations omitted).

III.

As previously noted, expert testimony is admissible if (1)

the expert is qualified to testify on the topic at issue, (2) the

methodology used by the expert is sufficiently reliable, and (3)

the testimony will assist the trier of fact. Arthrex, 2014 WL

3747598, *1. While MetLife asserts generally that Tharpe’s

testimony fails to meet all three requirements, its argument

focuses predominately on the first and third tests. (Doc. #82,

pp. 6-12.) Specifically, MetLife argues (1) Tharpe’s lack of

specialized knowledge and experience with Florida Department of

Health or Board of Medicine procedures makes him unqualified to

opine about medical licensing issues in this action, and (2) such

testimony would be irrelevant, improper, and will not assist the

trier of fact regardless because Tharpe seeks to offer an opinion

as to how to interpret a contract. (Id. pp. 6-11.) Because the

Court agrees with the latter argument, it will grant the motion to

strike without addressing the former.

Dr. Liebowitz is offering Tharpe’s opinions as to how the

term “under review” in the application should be interpreted.

However, under Florida law, “the interpretation of insurance

contract provisions, including resolving ambiguities in the

contract, is a matter of law to be decided by the court.” RSUI

Indem. Co. v. Benderson Dev. Co., 2011 WL 32318, *3 (M.D. Fla.

Jan. 5, 2011) (citations omitted).2 To the extent Tharpe is opining

that Dr. Liebowitz did not make a fraudulent representation in the

application based on the “most reasonable” interpretation of

“under review,” such an opinion would constitute an improper legal

conclusion. See Cook ex rel. Estate of Tessier v. Sheriff of

Monroe Cnty., Fla., 402 F.3d 1092, 1112 n.8 (11th Cir. 2005)

(noting “testifying experts may not offer legal conclusions”).

Accordingly, the Court finds the opinion will not be helpful and

therefore is inadmissible.

Dr. Liebowitz asserts Tharpe should be permitted to offer his

opinions because “under review” is ambiguous. (Doc. #88, p. 6.)

However, an ambiguity does not necessarily exist simply because a

term is undefined. See RSUI, 2011 WL 32318, *3 (“The lack of a

definition of an operative term in a policy does not necessarily

render the term ambiguous and in need of interpretation by the

courts.” (citations omitted)). Dr. Liebowitz also argues Tharpe’s

testimony can give trade usage context to the term “under review,”

and that he can testify “about the meaning of terms of art within

2 While the issue before the Court is interpretation of a term

in an application for insurance, the Court finds the principles

involving contract interpretation applicable.

the ‘industry’ of professional disciplinary administrative

proceedings.” (Doc. #88, pp. 6-7.) The Court finds neither of

these assertions convincing.

While expert testimony to interpret contract language may be

admissible when there is a need to clarify or define terms of art,

science, or trade, TCP Indus., Inc. v. Uniroyal, Inc., 661 F.2d

542, 549 (6th Cir. 1981), Tharpe has specifically stated in his

affidavit that “[i]n [his] more than twenty-years’ involvement in

administrative disciplinary hearings, [he] cannot recall anyone

ever remarking that the professional license of the licensee was

‘under review’ or ‘being reviewed.’” (Doc. #74-3, pp. 109-110).

Accordingly, Tharpe’s proposed interpretation of “under review” is

not based on trade usage, since the term is apparently not used in

the administrative discipline industry. See Sparton Corp. v.

United States, 77 Fed. Cl. 1, 8 (Fed. Cl. 2007) (“In the absence

of specialized trade usage, expert testimony regarding proper

contract interpretation is inadmissible, as is expert testimony

regarding the legal significance of the contract language.”)

Having reviewed the proposed opinions and relevant case law,

the Court finds Tharpe’s testimony does not meet the requirements

of admissibility under Rule 702 and Daubert because it will not be

helpful to the Court as factfinder. To the extent Dr. Liebowitz

wishes to persuade the Court as to how to interpret the phrase

“under review,” his attorney is free to make such an argument.

However, Tharpe’s testimony and opinions on this issue will not be

admitted.

Accordingly, it is now

ORDERED:

Plaintiff’s Motion to Strike Testimony of William Tharpe,

Esq. (Doc. #82) is GRANTED.

DONE AND ORDERED at Fort Myers, Florida, this 17th day of

September, 2021.

9 mz

VAM Z~ DW

JGHHN E. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

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