Amica Life Insurance Company v. Wertz

Filing 71

ORDER granting 58 MOTION to Exclude Testimony of Defendant's Expert, John Kezer, Esquire by Judge William J. Martinez on 03/07/2017. (cthom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 15-cv-1161-WJM-CBS
AMICA LIFE INSURANCE COMPANY,
Plaintiff,
v.
MICHAEL P. WERTZ,
Defendant.

ORDER GRANTING PLAINTIFF’S RULE 702 MOTION

In this declaratory judgment action, Plaintiff Amica Life Insurance Company
(“Amica”) seeks a ruling that the death of an insured, Martin K. Fisher (“Fisher”), does
not obligate it to pay life insurance benefits because Fisher took his own life. (ECF
No. 1.) Defendant Michael P. Wertz (“Wertz”) is the named beneficiary under Fisher’s
policy, and has counterclaimed for breach of insurance contract. (ECF No. 50.)
Currently before the Court is Amica’s Motion Pursuant to Fed. R. Evid. 702 to
Exclude Testimony of Defendant’s Expert. (ECF No. 58.) For the reasons explained
below, this motion is granted.
I. BACKGROUND
As summarized in the Court’s only other substantive order in this matter, this
dispute centers around whether the suicide exclusion in Fisher’s life insurance policy is
enforceable. See Amica Life Ins. Co. v. Wertz, 2016 WL 8253895, at *1 (D. Colo. May

11, 2016).1 Fisher’s policy with Amica provided that suicide was not covered if it
occurred within two years of when the policy issues, as permitted under the Individual
Term Life Insurance Standards (“Interstate Standards”) promulgated by the Interstate
Insurance Product Regulation Commission (“Commission”). Id. Colorado is a member
of the Interstate Insurance Product Regulation Compact, from which the Commission
derives its authority. Id.
Fisher’s suicide on March 12, 2015, was less than two years from January 28,
2014, when his policy issued. Id. Given that, Amica denied Wertz’s claim for Fisher’s
death benefit. Id. Wertz contends, however, that Colorado Revised Statutes § 10-7109 controls this matter. Id. That statute only permits one-year suicide exclusions, and
Fisher’s suicide took place more than one year after his policy issued. Amica then filed
for declaratory judgment that the Interstate Standards control when in conflict with § 107-109; Wertz counterclaimed for the opposite declaration, and for the policy benefits
themselves. Id.
At first, the parties agreed that this case presented a pure issue of law to be
resolved on the papers: does application of the Interstate Standards in Colorado violate
Colorado constitutional doctrines regarding delegation of legislative authority,
separation of powers, equal protection, and special legislation? Id. at *1–2. After the
close of briefing on those matters, however, Wertz filed a motion to amend his answer
and counterclaims, asserting that he had recently discovered evidence suggesting that
the Commission did not follow its own procedures for promulgating the Interstate

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On the Court’s docket at ECF No. 49.

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Standards. Id. at *2–3. The Court agreed to permit amendment, finding that the
Commission’s alleged procedural irregularity should be explored because, if the
irregularity in fact existed, it would permit the Court to avoid the “weighty” Colorado
constitutional questions. Id.
About a month before the Court issued that order, W ertz obtained an expert
opinion from Mr. John Kezer, Esq., regarding various matters supposedly at issue.
(ECF No. 58-1.) Amica now moves to exclude Kezer’s opinion as inadmissible under
Federal Rule of Evidence 702, largely because it comprises interpretations of (or
opinions about) the law, not explanation of facts in light of governing law.
II. LEGAL STANDARD
A district court must act as a “gatekeeper” in admitting or excluding expert
testimony. Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1232 (10th Cir. 2004). Adm ission
of expert testimony is governed by Rule 702, which 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: (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. The proponent of the expert testimony bears the burden of proving
the foundational requirements of Rule 702 by a preponderance of the evidence. United
States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009) (en banc).

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“An opinion is not objectionable just because it em braces an ultimate issue.”
Fed. R. Evid. 704(a). Nonetheless, “[t]here is a significant difference between an
attorney who states his belief of what law should govern the case and any other expert
witness. While other experts may aid a jury by rendering opinions on ultimate issues,
our system reserves to the trial judge the role of adjudicating the law for the benefit of
the jury.” Specht v. Jensen, 853 F.2d 805, 808–09 (10th Cir. 1988).
III. ANALYSIS
Kezer states that he is “keenly aware of the concerns any Court might have
about its role to address legal issues and questions,” and he therefore strove to apply
his background, experience, and training “to the relevant facts and issues and not to
create or write legal opinions.” (ECF No. 58-1 at 7.) 2 Kezer’s own words elsewhere in
his opinion, however, implicitly reveal the difficulty he faced in this task:
The legal issues are clearly presented in the pleadings, but,
briefly summarized as an introduction to my report and
opinions, [they] entail the questions as to:
Can and do the actions of the Commission by which it
promulgated [Interstate] Standards which established a
two (2) year suicide exclusion override . . . the longestablished and existent Colorado statute which contains
a one (1) year suicide exclusion?
You’ve asked that I apply my background, experience and
training as a former Colorado Insurance Commissioner and
as a licensed attorney in Colorado with a practice emphasis
in insurance and insurance regulatory law, to address and
opine about these questions.
(Id. at 4 (emphasis added).)

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All ECF page citations are to the page number in the ECF header, which does not
always match the document’s internal pagination, particularly in exhibits.

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Given the scope of his retention, it is perhaps unsurprising that his opinion then
goes on to read like a legal memorandum. Kezer discusses, for instance, how the
Commission’s promulgation procedures differ from those that Colorado regulators must
follow; about the public policy interests served by formal rulemaking under the Colorado
Administrative Procedures Act; about what the Commission’s promulgation of the
Interstate Standards “should have involved” (from a policy perspective) to protect
Colorado insurance consumers; and what Kezer himself would have done if he had
been head of the Colorado Division of Insurance at the time the Commission
promulgated the Interstate Standards. (See id. at 7–13.) There is nothing that “will
help the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R.
Evid. 702(a) (emphasis added). Rather, Kezer simply presents arguments about the
legal issues this Court may eventually decide, depending on the evidence regarding
whether the Commission properly promulgated the Interstate Standards under its own
rules.
To be sure, an expert’s testimony is not per se inadmissible simply because it
requires discussion of the law. “[A] witness may properly be called upon to aid the jury
in understanding the facts in evidence even though reference to those facts is couched
in legal terms.” Specht, 853 F.2d at 809. Moreover, even where the decision is
ultimately a matter for the Court, the Court may admit expert evidence of matters such
as custom and usage in the relevant industry. See Phillips v. Calhoun, 956 F.2d 949,
952 (10th Cir. 1992). But Kezer does not offer anything like this. For example,
although Wertz has raised a question whether the Commission properly promulgated its
own Interstate Standards, Kezer offers no expert insight into those promulgation
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procedures (e.g., how they are customarily carried out, if different from the
Commission’s written guidelines). Wertz has also raised a question of whether the
Colorado Legislature received sufficient time to examine and opt out of the Interstate
Standards, but Kezer offers no insight into how the relevant legislative office or
committee receives and examines proposed standards from the Commission. Kezer
ultimately does no more than render an opinion on precisely the topic he was retained
to render an opinion: whether Colorado Revised Statutes § 10-7-109 or the Interstate
Standards control in this case. That is a question of law for the Court, not the proper
subject of expert testimony. Amica’s motion will be granted.
The Court recognizes that Wertz has already filed a summary judgment
response brief that attaches, and cites to, Kezer’s report. (See ECF No. 70-2.) The
Court will treat Kezer’s arguments in that Rule 56 context for what they are—legal
arguments—and evaluate them as it would any legal argument advanced in a brief filed
with respect to Amica’s motion for summary judgment. The Court will not accept
Kezer’s arguments for the purposes of creating a material issue of fact.3
IV. CONCLUSION
For the reasons stated above, Amica’s Motion Pursuant to Fed. R. Evid. 702 to
Exclude Testimony of Defendant’s Expert (ECF No. 58) is GRANTED. The Court
recognizes that its Order today may impact Amica’s summary judgment reply brief
strategy. As a consequence, and as a courtesy to counsel, the Court sua sponte

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The Court notes that Kezer has also submitted an affidavit in support of Wertz’s
summary judgment response. (ECF No. 70-1.) Amica is free to argue against the admissibility
of this affidavit in its summary judgment reply brief (and not in any separate motion to strike),
but the Court will not prejudge that matter in this Order.

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extends the deadline for Amica to file its reply brief in support of its motion for summary
judgment by one day, to March 9, 2017.
Dated this 7th day of March, 2017.
BY THE COURT:

William J. Martínez
United States District Judge

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