Bergman v. United Services Automobile Ass'n

CIRILLO, President Judge Emeritus,

concurring:

¶ 1 I join in the reasoning and result reached by the majority. I write separately, however, to address to what extent the majority’s holding should apply in future cases and certain relevant issues that the majority has failed to address.

¶ 2 ' The majority states that the appellant is asking for essentially a per se rule requiring expert testimony in insurance bad faith actions, which the majority declines to adopt. However, nowhere in appellant’s brief does he state he would like this court to adopt such a rule. The proper question is not on such a high level, but rather the issue here is simply: “Did the trial court err in precluding the testimony of appellant’s expert?”

¶ 3 Presently, Bergman, as the insured, appealed the decision of the trial court because the court precluded the testimony of his insurance expert. The majority cites in its decision the case of McDaniel v. Merck, Sharp & Dohme, 367 Pa.Super. 600 , 533 A.2d 436, 440 (1987), which held that two main issues in a case such as this are: (1) whether the subject to be addressed by the expert witness is so distinctly related to some science, profession, business or occupation that it is beyond the understanding of the average layperson and, if the answer to the first prong is yes, (2) whether the proposed witness has sufficient skill, knowledge or experience in that field as to make it appear his opinion will probably aid the trier of fact in the search for truth?

¶4 In Dattilo v. State Farm Ins. Co., 1997 WL 644076 (E.D.Pa.1997), affirmed, 168 F.3d 478 (3 rd Cir.1998), the Third Circuit held that “bad faith is a legal concept of general application which does not require that scientific, technical or specialized knowledge be presented to assist the trier of fact.” Id. at 4. This premise went directly to proving the first prong of the McDaniel test. Certainly, there is no scientific or technical knowledge which had to be presented to the factfinder in the present case. As the trial court noted in its Pa.R.A.P.1925 opinion, “[t]he court was right to refuse to admit Gottheimer’s testimony, which in this context was no more than ‘subjective speculation unsupported by any scientific or specialized knowledge.’ ” Id. So, not only was scientific or specialized testimony not necessary in this bad faith case, but Gottheimer’s report and testimony were not even scientific or specialized.

¶ 5 Since the answer to the first question above is “no,” we need not address the second question under McDaniel . 7 The majority did not address this question either, as it never answered the question of whether plaintiffs expert, Dr. Gottheimer, was qualified as an expert in insurance *1110 claims handling. However, I do think it should be emphasized that the expert, here, Dr. Gottheimer, was an expert in reinsurance matters, which is separate and apart from any expert in insurance claims handling. Even if the answer to prong one were “yes,” this expert would not have qualified under prong two. It is clear Bergman selected an inappropriate expert upon whom the factfinder would have relied.

¶ 6 As the majority agreed with the appellee’s request for this court to adopt the rationale of Dattilo , it is, however, slightly distinguishable from the present case, although both cases relate to whether an expert witness for an insured in a bad faith case is needed. In Dattilo , the court decided the expert “qualified” as an expert, but also decided his testimony would only amount to subjective speculation. Dattilo at 4 . Here, the majority finds that the testimony of Dr. Gottheimer would “not contribute anything that had not already been said either in his report or by other witnesses of record in this case.” See Majority Opinion at 1108. Basically, the majority holds the report and testimony of Dr. Gottheimer would be cumulative, repetitive, or even unnecessary testimony to assist the factfinder, without ever first deciding if Dr. Gottheimer qualified as an expert, as the court positively decided in Dattilo .

¶ 7 Moreover, the court in Dattilo made a distinction between the admissibility of experts in bad faith cases versus malpractice cases, where an insurer would be judged by the standards of the insurance industry. Dattilo at 4 . Therefore, another item should be addressed: whether the majority’s opinion should be followed in malpractice cases, where an expert in insurance matters would be helpful and necessary to the factfinder? Even if the expert qualifies as such, as Dr. Got-theimer would not have, a bad faith case is not a malpractice case. Here, an insurer’s conduct would not be judged by the standards of the insurance industry, as it would in a malpractice case. Since this bad faith case was not a case requiring a comparison of the United Services Automobile Association’s claims adjuster against that of the entire insurance industry, it is even more understandable why an expert would be precluded from testifying. 8 Experts in the insurance claims handling industry belong in malpractice cases, not in cases alleging bad faith.

¶ 8 The final feature of this case which the majority ignores is that this was a bench trial. The majority does not relate the importance of this fact. The trial court noted that bad faith cases are usually bench trials:

One thing that’s a little different about these bad faith cases is that in the State Court, generally the courts have agreed that they should be a non-jury case ... The analysis in the Federal Court has been different because of the 7th Amendment. So that when these cases are filed in the Federal Court, they get juries ... So, it [is] a different analysis as to whether or not you need an expert, because you have a jury that may not be familiar with the handling of claims, procedures involved in claims. It has been my experience that in a non-jury case, you [do not] have the same analysis. There really [is not] in my view a need to educate the Court on how claims are handled.

¶ 9 This is an important distinction to be made in this state court case, which is not bound by the United States Constitution’s Seventh Amendment. This may be the real reason that the trial court judge precluded the testimony because the judge was the factfinder and the interpreter of the law. It appears that in bad faith cases the trial court judge will hold the discretionary call as to whether an expert will be *1111 needed to testify on these types of matters. Therefore, the personal knowledge of the trial judge will be the determinative factor in whether the trial judge will admit the expert’s testimony. Never will a trial judge need to make a decision as to whether to admit an expert in a bad faith case for the assistance of a jury, which traditionally have not heard these types of cases.

¶ 10 With the addition of the foregoing, I join the majority.

. As the majority declines to adopt a per se rule requiring an expert in this type of case, the majority does not address whether this holding also applies to insurers (rather than insureds as the case here) who may want to bring forth an expert in later cases. Should an insurance company wish to put an expert on the stand to address insurance-related matters in a bad faith case, it, too, would fail to meet prong one of McDaniel , which asks whether the issue is of a technical nature beyond the scope of average layperson’s knowledge.

. Another distinguishing factor is that Dattilo was a federal jury case, whereas the instant case was a state non-jury case.