A federal judge in Austin recently denied competing motions to strike filed by a law firm and its malpractice insurer, New York Marine and General Insurance Company (“NYM”). Ryan Law Firm v. New York Marine and General Insurance Company, No. A-19-CV-629-RP, 2021 WL 828494 (W.D. Tex. March 3, 2021) involved allegations by a law firm that NYM wrongfully failed to settle a malpractice suit and thus breached its contract with the law firm and acted in bad faith in handling the claim.

NYM retained one of MDJW’s founding partners, Christopher Martin, to serve as its testifying expert and designated him as such on April 17, 2020. In that designation, Mr. Martin opined that there was no evidence of any Insurance Code violations, violations of any common law standards, or any other improper conduct by NYM. A few months later, the Court dismissed the law firm’s bad faith claims. Mr. Martin issued his supplemental report on January 28, 2021, after the Court made several substantive rulings and depositions were taken regarding issues Mr. Martin raised in his first report. The law firm thereafter moved to strike Mr. Martin as an expert witness, while NYM filed its own motion to strike the law firm’s testifying witness, Dina Cox.

First, the law firm argued that, because its bad faith claims had been dismissed and Mr. Martin’s report included opinions as to whether NYM acted in bad faith, Mr. Martin’s initial report was irrelevant. In response, the Court noted that Mr. Martin’s report touched on many other issues, including the unreasonableness and prematurity of the law firm’s settlement amount with its client, the reasonableness of NYM in refusing to reimburse the law firm for its voluntary settlement, and NYM’s reasonableness in handling the defense of the claim, among others. The Court then found that such opinions were relevant to the law firm’s breach of contract claim, which was the sole remaining issue in the case.

Second, the law firm claimed Mr. Martin’s supplemental report should be stricken because it was untimely, given that they believed it was a “new” report and not a true supplementation. The Court roundly rejected that argument as well, holding that Mr. Martin properly supplemented his initial report after the Court issued substantive rulings and additional depositions had been taken that Mr. Martin incorporated into his initial report, and the supplemental report covered the same issues raised in the initial report.

Finally, the law firm insisted that Mr. Martin’s opinions in the supplemental report were speculative. The Court held that whether such opinions were speculative was an issue to be addressed during cross-examination, not a basis for disqualification. Thus, the Court denied the law firm’s motion to strike Mr. Martin as a testifying expert.

The Court also quickly disposed of NYM’s motion to strike Dina Cox, which argued Ms. Cox’s opinions were unreliable because she “cherry-pick[ed] certain facts and ignore[d] other crucial evidence,” holding that such issues could be addressed on cross-examination and were not a proper basis for disqualification.

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