# American Empire Surplus Lines Insurance Company v. J.R. Contracting & Environmental Consulting, Inc.

> District Court, S.D. New York · October 21, 2024

URL: https://www.frixlaw.com/law-library/cases/10663462

## Case

- **Court:** District Court, S.D. New York
- **Decided:** October 21, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10663462

## Opinion text

USL SUNT
DOCUMENT
UNITED STATES DISTRICT COURT ELECTRONICALLY FILED
SOUTHERN DISTRICT OF NEW YORK DOCH
DATE FILED: 10/21/2024
American Empire Surplus Lines Insurance
Company,
Plaintiff, 1:23-cv-04942 (AT) (SDA)
-against- OPINION AND ORDER
J.R. Contracting & Environmental
Consulting, Inc.,
Defendant.

STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE:
Pending before the Court is a motion by Defendant J.R. Contracting & Environmental
Consulting, Inc. (“J.R.” or “Defendant”), pursuant to Rule 702 of the Federal Rules of
Evidence and Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), to exclude
the proposed opinions of Plaintiff’s expert, Thomas M. Trezise (“Trezise”), which are offered
in rebuttal of the opinions of Defendant’s expert, Arthur R. Nelson (“Nelson”) (hereinafter,
the “Daubert Motion”). (Def.’s 8/16/24 Not. of Daubert Mot., ECF No. 75.)*
For the reasons set forth below, Defendant’s Daubert Motion is GRANTED IN PART
and DENIED IN PART.

* The Honorable Analisa Torres referred the Daubert Motion to the undersigned as a non-dispositive
motion. (Am. Order of Reference, ECF No. 54.) “Because Daubert motions are ‘nondispositive of the
litigation,’ they are routinely determined by magistrate judges, subject to ‘clear error’ review by the
district judge.” DoubleLine Cap. LP v. Odebrecht Fin., Ltd., No. 17-CV-04576 (DEH) (BCM), 2024 WL
1115944, at *3 n.4 (S.D.N.Y. Mar. 14, 2024) (quoting /srael v. Springs Indus., Inc., No. 98-CV-05106 (ENV)
(RML), 2007 WL 9724896, at *2 (E.D.N.Y. July 30, 2007)) (cleaned up).

BACKGROUND2
I. Factual Overview
Plaintiff American Empire Surplus Lines Insurance Company (“AESLIC” or “Plaintiff”)

issued to J.R. a commercial excess liability policy (the “Policy”), which included a premium
charge to be computed as a percentage of J.R.’s gross receipts during the policy period. Am.
Empire, 2024 WL 3638329, at *1. Plaintiff assigned an advanced premium to the Policy based
on J.R.’s estimate of its gross receipts during the policy period, which was subject to
adjustment if a post-policy audit reflected that J.R.’s actual gross receipts exceeded its initial
estimate. Id.

The post-policy audit concluded that J.R.’s actual gross receipts exceeded its initial
estimate, and thus J.R. owed an additional premium in the amount of $487,386.00. Am.
Empire, 2024 WL 3638329, at *2. Following non-payment of this additional premium, AESLIC
brought this action on June 13, 2023, seeking to recover payment of said additional
premium. Id. On March 29, 2024, Nelson issued his expert report in support of J.R. Id.
II. Trezise Report

After Nelson issued his expert report in support of J.R. on March 29, 2024, Am.
Empire, 2024 WL 3638329, at *2, on May 29, 2024, Trezise issued his rebuttal report in
support of AESLIC (the “Trezise Report”). (Trezise Rpt., ECF No. 76-2.) Based on his review of
the audit and the Nelson Report, Trezise offered the following four opinions:
1. The Policy was a surplus lines policy and, as such, not regulated by the
State of New Jersey. [AESLIC] had full discretion to establish the forms
2 The Court assumes familiarity with its prior Opinion and Order regarding a Daubert motion filed by
Plaintiff. See Am. Empire Surplus Lines Ins. Co. v. J.R. Contracting & Env’t Consulting, Inc., No. 1:23-CV-
04942 (AT) (SDA), 2024 WL 3638329, at *1-3. (S.D.N.Y. Aug. 2, 2024).
and terms of the Policy as well as the rules and rates by which the
premium was determined.
. . .
2. The terms of the Policy solely define the relationship between [AESLIC]
and J.R. . . .. Standards and practices, whether of admitted or surplus
lines insurers, have no application.
. . .
3. The Policy provided coverage for significant risks. The coverage was not
illusory.
. . .
4. J.R. . . . and . . . Nelson cannot challenge the underwriting process of
[AESLIC].
. . .
(Trezise Rpt. at 4-10 (emphases omitted).) While addressing a number of Nelson’s premises
and assumptions, Trezise maintains that “rate [at issue] was unmistakably and clearly stated
and anyone familiar with basic arithmetic can understand how it determined the premium.
The Policy has no flaw as to the definition of the [r]ates and is, therefore, enforceable.” (Id.
at 7.)
On July 17, 2024, Defendant deposed Trezise regarding the opinions expressed in the
Trezise Report. (Trezise Dep., ECF No. 76-3.)
III. J.R.’s Daubert Motion And Relevant Procedural History
On July 26, 2024, J.R. moved for leave to file a Daubert Motion to exclude Trezise’s
proposed expert opinions. (Def.’s 7/26/24 Letter, ECF No. 72, at PDF p. 1.) Because there
was a Daubert motion to exclude the expert opinions of Nelson (the “Nelson Daubert
Motion”) pending before the Court at that time, on July 29, 2024, the Court ordered J.R. to
refrain from filing the motion until after the Court’s decision on the Nelson Daubert Motion.
(7/29/24 Order, ECF No. 73 (“Because the Court’s decision on such motion may affect the
scope of Nelson’s testimony, and by extension the scope of any rebuttal, Defendant shall

refrain from filing its motion until after the Court’s decision on [the Nelson Daubert
Motion.”).)
On August 2, 2024, the Court granted in part and denied in part the Nelson Daubert
Motion. Am. Empire, 2024 WL 3638329 at *1. Specifically, the Court found:
In sum, although Nelson shall not be permitted to testify about his
interpretation of the Policy, and any other legal conclusions, the Court finds
that it is more likely than not that Nelson is qualified to serve as an expert,
that his opinions are based on sufficient facts, that he applied reliable
principles and methods and that his opinions will help Judge Torres to
understand the evidence. Thus, Nelson may provide testimony about the
insurance industry and audits, and may provide his opinion regarding
premiums due under the Policy based upon a hypothetical set of facts.

2024 WL 3638329 at *10.
On August 16, 2024, J.R. filed its Daubert Motion (and supporting papers) to exclude
Trezise’s expert opinion. (Def.’s 8/16/24 Not. of Daubert Mot.; Palatucci Decl.; Def.’s Mem.,
ECF No. 77.) On August 29, 2024, AESLIC filed its opposition papers. (O’Connor Decl., ECF No.
79; Pl.’s Opp’n Mem., ECF No. 80.) On September 6, 2024, J.R. filed its reply memorandum.
(Def.’s Reply, ECF No. 81.)
LEGAL STANDARDS
Rule 26 of the Federal Rules of Civil Procedure provides that parties can submit expert
testimony that is “intended solely to contradict or rebut evidence on the same subject
matter identified by another party.” Fed. R. Civ. P. 26(a)(2)(D)(ii). “Rebuttal [expert] evidence
is properly admissible when it will explain, repel, counteract or disprove the evidence of the
adverse party.” Scott v. Chipotle Mexican Grill, Inc., 315 F.R.D. 33, 44 (S.D.N.Y. 2016) (citation
omitted).
Rule 702 of the Federal Rules of Evidence, which governs the admissibility of

testimony by expert witnesses, including rebuttal experts, provides:
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 the
proponent demonstrates to the court that it is more likely than not that:

(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’s opinion reflects a reliable application of the
principles and methods to the facts of the case.

Fed. R. Evid. 702.
The Rule 702 standard incorporates the principles enunciated in Daubert, 509
U.S. at 589, 597, in which the Supreme Court held that trial courts have a
gatekeeping function to ensure that any and all scientific testimony or
evidence admitted is not only relevant, but reliable, and in Kumho Tire Co. v.
Carmichael, 526 U.S. 137 (1999), in which the Supreme Court held that
Daubert’s general gatekeeping obligation applies not only to testimony based
on ‘scientific’ knowledge, but also to testimony based on ‘technical’ and ‘other
specialized’ knowledge.
Atl. Specialty Ins. v. AE Outfitters Retail Co., 970 F. Supp. 2d 278, 284 (S.D.N.Y. 2023) (cleaned
up). Thus, “rebuttal experts must meet Daubert’s threshold standards regarding the
qualifications of the expert, sufficiency of the data, reliability of the methodology, and
relevance of the testimony.” Scott, 315 F.R.D. at 44 (citing cases).
The proponent of expert testimony must establish admissibility by a preponderance
of the evidence. See Bourjaily v. United States, 483 U.S. 171, 175-76 (1987). Nevertheless,
Rule 702 “embodies a liberal standard of admissibility for expert opinions.” Nimely v. City of

New York, 414 F.3d 381, 395 (2d Cir. 2005), especially in the context of bench trials. See
Am. Empire, 2024 WL 3638329 at *3.
DISCUSSION
In determining the instant motion, the Court considers below the following criteria
for expert testimony, i.e., Trezise’s qualifications as an expert, whether his opinions are
based on sufficient facts or data, whether he used reliable principles and methods and

whether his opinion is helpful to the trier of fact.3
I. Qualifications
A. Parties’ Positions
Defendant argues that Trezise is not qualified as an expert because he lacks relevant
experience in conducting post policy premium audits, especially in connection with surplus
lines policies. (Def.’s Mem. at 11.) Plaintiff, on the other hand, argues that Trezise “possesses

knowledge, experience, training, and education” as to each of the areas relevant to his
opinions. (Pl.’s Opp’n Mem. at 5.) These areas, Plaintiff avers, include the excess and surplus
lines insurance market in New York and insurance company claims handling as to the

3 In rendering its decision, the Court is mindful that there will be a bench trial in this case and, as such, the
Court may take in the expert testimony freely and separate helpful expert opinions from ones that are
not grounded in reliable methodology. See Joseph S. v. Hogan, No. 06-CV-01042 (BMC) (SMG), 2011 WL
2848330, at *3 (E.D.N.Y. July 15, 2011); see also Am. Empire, 2024 WL 3638329 at *3 (“While standards
for admissible evidence are not out the window entirely in a bench trial, all doubts at a bench trial should
be resolved in favor of admissibility.” (citation omitted)).
potential applicability of the cited exclusions contained in the insurance policies at issue
here.4 (Id.) Specifically, Plaintiff proffers that Trezise (1) “has assisted underwriting
departments in the development, drafting, and approval of policy forms, underwriting

classifications, rate filings, and risk management service,” (2) “has worked for a total of over
thirty years in different capacities for various insurers,” and (3) “has served before as an
expert witness in insurance industry issues.” (Id. at 6.)
B. Legal Standards
The Court incorporates the legal standards regarding an expert’s qualifications that
are set forth in its prior Opinion and Order. See Am. Empire, 2024 WL 3638329, at *5. These

standards are as follows:5
Rule 702 requires a trial court to make an initial determination as to whether the
proposed witness qualifies as an expert. A court first must determine whether a proposed
expert is qualified to provide an opinion, before then assessing the reliability and relevance
of the expert’s proffered testimony. To determine whether a witness qualifies as an expert,

the court first must ascertain whether the proffered expert has the educational background
or training in a relevant field. Any one of the qualities listed in Rule 702—knowledge, skill,
experience, training or education—may be sufficient to qualify a witness as an expert. Even
if a proposed expert lacks formal training in a given area, he may still have practical

4 The complete list of areas that Plaintiff avers are relevant to the analysis of claims in this action can be
found in the Court’s prior Opinion and Order. See Am. Empire, 2024 WL 3638329, at *4.
5 In the following two paragraphs, the Court has omitted citations to the case law supporting each of the
statements. The citations can be found in the Court’s prior Opinion and Order. See Am. Empire, 2024 WL
3638329, at *5.
experience or specialized knowledge qualifying him to given opinion testimony under Rule
702. But if the witness is relying solely or primarily on experience, then he must explain how
that experience leads to the conclusion reached, why that experience is a sufficient basis for

the opinion, and how that experience is reliably applied to the facts.
The Court must compare the area in which the witness has superior knowledge,
education, experience or skill with the subject matter of the proffered testimony. If the
expert has educational and experiential qualifications in a general field closely related to the
subject matter in question, the court will not exclude the testimony solely on the ground

that the witness lacks expertise in the specialized areas that are directly pertinent. Thus, an
expert should not be required to satisfy an overly narrow test of his own qualifications, and
the court’s focus should be on whether the expert’s knowledge of the subject is such that
his opinion will likely assist the trier of fact in arriving at the truth. Assertions that the witness
lacks particular educational or other experiential background, go to the weight, not the
admissibility, of the testimony.

C. Application
The Court finds that Trezise is qualified as an expert (but not as to legal conclusions,
see Discussion Section III, infra). Trezise graduated cum laude from Western Maryland
College in 1975 with a Bachelor of Arts in American Studies and Political Science. (Trezise
Rpt. at 15.) He then obtained his Juris Doctor degree from Washington & Lee University in
1978. (Id. at 14.) In 2009, Trezise was licensed as an adjuster in the State of Florida.6 (Id. at
15.)
From 1978 to 1992, Trezise practiced as a trial attorney, where his experience

included commercial, and property & casualty and life insurance coverage and bad faith
litigation and his expertise included commercial litigation, premises and premises security
liability, and insurance coverage. (Trezise Rpt. at 14.) Trezise held various positions in the
insurance industry for over 30 years and, during that time, he supervised individuals who
conducted premium audits. (Trezise Dep. at 16-17.) He also was involved in litigation where

there was a dispute “over the premium owed or whether additional amounts were owed
under the policies.” (Id. at 27.) The policies in that litigation were “structured similar to the
policies in this case,” because there was “an [upfront] premium involved and then a premium
due at the end.” (Id.)
Additionally, Trezise’s self-identified expertise includes “the management of primary
and excess property and casualty liability, property, auto physical damage, and worker’s

compensation business operations, claims, coverage, and litigation, as well as reinsurance
and surplus lines issues in those lines.” (Trezise Rpt. at 12.) He also has assisted underwriting
departments in the development, drafting and approval of policy forms, underwriting
classifications, rate filings and risk management services. (Id. at 1; see also Trezise Dep. at
18-20.)

6 Trezise’s adjuster license has since expired. (Trezise Rpt. at 15.)
The Court finds that Trezise possesses “specialized knowledge” in insurance that will
more likely than not “help the trier of fact to understand the evidence or to determine a
fact.” Fed. R. Evid. 702(a). Also, because of his experience of over 30 years in the insurance

industry and related experience involving insurance coverage as a trial attorney, he has
“experiential qualifications in a general field closely related to the subject matter in
question.” Zyprexa Prods., 489 F. Supp. 2d at 282 (citation omitted). Considering the “liberal
thrust” of the Federal Rules and their “general approach of relaxing the traditional barriers
to ‘opinion’ testimony,” Trezise is qualified as an expert to provide an opinion (but not as to
legal conclusions). Daubert, 509 U.S. at 588-89; see also Zyprexa Prods., 489 F. Supp. 2d at

282 (“[T]he standard for qualifying expert witnesses is liberal.”).
II. Existence Of Sufficient Facts Or Data And Reliable Principles And Methods
A. Parties’ Positions
Defendant argues that Trezise’s opinions are not well-grounded, are not reliable, are
purely speculative, and lack analysis, because Trezise has no experience with post-policy

premium audits. (Def.’s Mem. at 11-14.) Plaintiff disagrees. (Pl.’s Opp’n Mem. at 8-10.)
B. Legal Standards
The Court incorporates the legal standards regarding the existence of sufficient facts
or data and reliable principles and methods that are set forth in its prior Opinion and Order.
See Am. Empire, 2024 WL 3638329, at *7. These standards are as follows:7

7 In the following two paragraphs, the Court has omitted citations to the case law supporting each of the
statements. The citations can be found in the Court’s prior Opinion and Order. See Am. Empire, 2024 WL
3638329, at *7.
In determining the reliability of an expert’s testimony or report, courts should
consider the indicia of reliability identified in Rule 702, namely, (1) that the testimony is
grounded on sufficient facts or data; (2) that the testimony is the product of reliable

principles and methods; and (3) that the witness has applied the principles and methods
reliably to the facts of the case. Often, this is reflected by means of a technical theory that
has been tested, subject to peer review and publication, has a known or potential rate of
error with some controlling standards and is generally accepted in the scientific community.
However, these factors do not constitute a definitive checklist or test. The inquiry is a flexible

one and must be tied to the facts of a particular case with attention to the nature of the
issue, the expert’s particular expertise, and the subject of his testimony.
There is no separate Rule 702 issue stemming from the fact that the relevant
reliability concerns focus upon personal knowledge or experience. Courts recognize that
experts of all kinds tie observations to conclusions through the use of what Judge Learned
Hand called general truths derived from specialized experience. A proffered expert

recounting his experience concerning the use of terms in the industry is “testable” under
Daubert in the sense that industry practice is provable (or disprovable) by equivalent
testimony by experienced participants in the industry. The proffered expert’s methodology
employed must be rooted in the expert’s practical experience.
C. Application
The Court finds that Trezise’s opinions, as permitted herein, are based upon sufficient

facts and reliable principles and methods drawn from his background, including relevant
experience. Trezise has decades of experience in the insurance industry (Trezise Dep. at 14),
during which he was exposed to the surplus lines market. (Id. at 41, 55.) Trezise’s opinions
regarding industry practice, including his opinions about the purpose of surplus lines policies
(see Trezise Rep. at 5-6) and the general existence of standards and practices in the surplus

lines market (see id. at 6; Trezise Dep. at 44), is based upon that experience.
Indeed, during his deposition, Trezise explicitly tied his conclusion regarding industry
practice to his specialized experience:
Q [Counsel for Defendant]: From your experience, is that pertinent these
items, these advanced premium numbers got
calculated?
A [Trezise]: In my experience, no. The classification itself
wouldn’t go in there--as I said earlier. It’s part of
the program. So, it’s more of identification of an
insured that you wanted to insure and not
necessarily going into the calculation of the
premium. It’s going to vary from insured to
insured. Not necessarily going into the
calculation of the premium. It’s going to vary
within insured to insured. Even in the admitted
market, it will vary from insured to insured. So,
[in] the Surplus Lines market it will be all over the
place.
(Trezise Dep. at 45, 55.)
Defendant argues that Trezise’s experience, which does not include participation in
post-policy premium audits, does not align with the issues here. (Def.’s Mem. at 12-14.)
However, such a “quibble” goes to the “weight and credibility,” and not the admissibility of
Trezise’s opinion. See McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1043 (2d Cir. 1995). Indeed,
the Court has allowed Defendant’s own expert, Nelson, who similarly does not have
experience with specific issues in this case, to provide his opinion in this case for the same
reason. Am. Empire, 2024 WL 3638329, at *8, 10.
Because Trezise “tie[s] observations to conclusions through . . . general truths derived
from . . . specialized experience” in the insurance industry, Nicholas v. Bratton, 376 F. Supp.
3d 232, 290 (S.D.N.Y. 2019) (cleaned up); “the test of reliability is ‘flexible,’” Kumho Tire, 526

U.S. at 141; there will be a bench trial; and the “standard of admissibility for expert opinions”
under Rule 702 is “liberal,” Nimely, 414 F.3d at 395, the Court finds that Trezise’s opinions
are based on sufficient facts and he used reliable principles and methods.
III. Helpful To The Trier Of Fact
A. Parties’ Positions

Defendant argues that Trezise lacks both experience and knowledge to assist the trier
of fact to determine the facts in issue, and that the Trezise Report and the opinions therein
should be excluded because the Trezise Report is comprised almost entirely of legal
conclusions. (Def.’s Mem. at 14-16.) Plaintiff argues that Trezise possesses both experience
and knowledge to help the trier of fact determine the facts in issue. (Pl.’s Opp’n Mem. at 6-
8.)

B. Legal Standards
The Court incorporates the legal standards regarding whether expert testimony will
be helpful to the trier of fact that are set forth in its prior Opinion and Order. See Am. Empire,
2024 WL 3638329, at *8-9. These standards are as follows:8
The Court must assess whether an expert’s knowledge more likely than not will help
the trier of fact to understand the evidence or to determine a fact in issue. To be admissible,

8 In the following paragraph, the Court has omitted citations to the case law supporting each of the
statements. The citations can be found in the Court’s prior Opinion and Order. See Am. Empire, 2024 WL
3638329, at *8-9.
a district court must conclude that proposed testimony will assist the trier of fact. Rule 702’s
requirement that the proffered testimony assist the trier of fact goes primarily to relevance
because if it does not relate to any issue in the case, it is not relevant and, ergo, non-helpful.

By attempting to opine on questions of law, the expert is not considered helpful to the trier
of fact because an expert is barred from giving testimony on issues of law.
C. Application
Having found that Trezise possesses the qualifications to serve as an expert in this
case, that he employed reliable principles and methods under Rule 702 (see Discussion
Sections I-II, supra), and having considered the content of Trezise’s opinion, the Court finds

it is more likely than not that Trezise, at the very least, will help Judge Torres to understand
the evidence and perhaps will help Judge Torres to determine a fact in issue.
Of note, too, Trezise’s opinion is provided as rebuttal of Nelson’s opinion, which the
Court has found to be helpful. See Am. Empire, 2024 WL 3638329, at *9. “If Plaintiffs’ expert
testimony is helpful to the trier of fact, then [the] rebuttal of that testimony would also be
helpful.” See Boone v. State Farm Fire & Cas. Co., No. 21-CV-00432 (GKF) (SH), 2023 WL

8470623, at *4 (N.D. Okla. Dec. 7, 2023).
Notwithstanding the foregoing, Trezise, like Nelson, should not be permitted to
testify regarding legal conclusions. See American Empire, 2024 WL 3638329, at *9. Thus, the
legal conclusions that are set forth in the Trezise Report must be excluded, for the reasons
explained in the undersigned’s prior Opinion and Order. See id. (interpretation of, and
coverage provided by, insurance agreement are questions of law as to which expert

testimony is not permitted).
Here, portions of the Trezise Report and related deposition testimony improperly
reach legal conclusions. For example, the Trezise Report includes interpretation of policy
language, such as the discussion of whether a professional liability exclusion clause in the

Policy limits its coverage for New York Labor Law claims. (Trezise Rpt. at 9.) Similarly,
Trezise’s deposition testimony reflects legal conclusions, including the following:
Q [Counsel for Defendant]: On Point 2 on Page 6 of your report, you say, “As
a Surplus Line Insured the only obligation
American Empire must meet are those stated in
the contract of the policy. Normal rules of
interpretation [may be] applied to those terms
but nothing more than those words of
interpretations may be read into the contract.”
Do you see that section?
A [Trezise]: Yes.
Q [Counsel for Defendant]: You still stand by that opinion?
A [Trezise]: Yes, you got the contract and you have the rules
of interpretation. That’s what determines the
contract.
(Trezise Dep. at 75.)
Such legal conclusions are not helpful to the trier of fact, because an expert’s opinion
on questions of law is inadmissible even when an expert—like Trezise, who is a former
practicing attorney—has legal qualifications. See Thor Equities, LLC v. Factory Mut. Ins. Co.,
627 F. Supp. 3d at 342 (citing Bilzerian, 924 F.2d at 1294) (finding testimony about insurance
policy coverage inadmissible, which was given by law professor with expertise in insurance
law). Indeed, this case is analogous to that in Marx & Co. v. Diners’ Club Inc., where the
Second Circuit held that the trial court erred by permitting an expert witness, a lawyer, to
opine on the legal obligations of contracting parties in a breach of contract claim. See Marx
& Co. v. Diners’ Club Inc., 550 F.2d 505, 508-09 (2d Cir. 1977).
Thus, like Nelson, see Am. Empire, 2024 WL 3638329 at *10, Trezise in rebuttal may
provide testimony about the insurance industry and audits, and he may provide his opinion
regarding premiums due under the Policy based upon a hypothetical set of facts. See Scott,
315 F.R.D. at 44 (“scope of a rebuttal is limited to the same subject matter encompassed in
the opposing party’s expert report”). Also, like Nelson, Trezise may not testify or provide his
opinion about his interpretation of the Policy, and may not testify about any other legal
conclusions. See Am. Empire, 2024 WL 3638329 at *10.
CONCLUSION
For the foregoing reasons, Defendant’s Daubert Motion is GRANTED IN PART and
DENIED IN PART.
Additionally, now having determined the parties’ Daubert motions, pre-motion
conference letters for any contemplated motions for summary judgment shall be filed no
later than Wednesday, November 20, 2024, in accordance with Judge Torres’ Individual
Practices. (See 5/13/24 Order, ECF No. 57.)
Dated: New York, New York
October 21, 2024

kissed. Oa
STEWART D. AARON
United States Magistrate Judge

16

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10663462. Public record. Not legal advice.