Mears v. Jones et al

Filing 245

ORDER granting in part and denying in part 169 MOTION to Exclude Expert Testimony of Defendants' Expert, Van E. Hedges filed by George Mears; 173 MOTION to Strike James C. Simpson, Jr filed by Mississippi Farm Bureau Casualty Insurance Company, Lance Fagan Jones; 175 MOTION to Strike Mike Manes filed by Mississippi Farm Bureau Casualty Insurance Company, Lance Fagan Jones; and denying as moot 215 MOTION to Strike 194 Affidavit of Defendan ts Expert, Van Hedges, filed by George Mears. The Court grants in part and denies in part the parties' motions to exclude expert witnesses, as provided in the order. The Court also denies as moot Plaintiff's motion to strike Defendant's expert's affidavit. Signed by District Judge Keith Starrett on 7/31/19. (cb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
GEORGE MEARS
v.

PLAINTIFF
CIVIL ACTION NO. 1:17-CV-6-KS-MTP

LANCE FAGAN JONES

DEFENDANT

ORDER
For the reasons provided below, the Court grants in part and denies in part
Plaintiff’s Motion to Exclude [169] the testimony of Defendant’s expert, Van Hedges;
Defendant’s Motion to Strike [173] the testimony of Plaintiff’s expert, James
Simpson; and Defendant’s Motion to Strike [175] the testimony of Plaintiff’s expert,
Michael Manes. The Court also denies Plaintiff’s Motion to Strike [215] the affidavit
of Van Hedges as moot.
This Court and the Court of Appeals have explained the background of this
case. See Mears v. Jones, 2017 WL 8786925, at *1 (S.D. Miss. Nov. 30, 2017); Mears
v. Jones, 756 F. App’x 404, 406-08 (5th Cir. 2018). One claim remains: Plaintiff’s
negligence claim against Defendant Lance Jones. Plaintiff alleges that Jones was
negligent in procuring insurance for him, and in advising him as to what insurance
was available. Both parties designated experts to provide opinion testimony
regarding insurance industry standards and whether Defendant’s actions complied
with those standards, and both parties seek the exclusion of the other party’s experts.
“The ability of a district court to evaluate expert testimony sua sponte and

exclude such testimony where appropriate has been recognized by several courts.”
Brenord v. Catholic Med. Ctr., 133 F. Supp. 2d 179, 188 n. 4 (E.D.N.Y. 2001) (citing
Kirstein v. Parks Corp., 159 F.3d 1065, 1076 (7th Cir. 1998)); see also Miller v. Baker
Implement Co., 439 F.3d 407, 413 (8th Cir. 2006); Accident Ins. Co. v. Classic Bldg.
Design, LLC, 2012 WL 3913090, at *14 (S.D. Miss. Sept. 7, 2012). Therefore, the
Court must address a problem with all three experts’ testimony that was not
adequately addressed by the parties’ motions.
“Expert testimony must be relevant, not simply in the sense that all testimony
must be relevant, but also in the sense that the expert’s proposed opinion would assist
the trier of fact to understand or determine a fact in issue.” Bocanegra v. Vicmar
Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003); see also FED. R. EVID, 702(a). Therefore,
“an expert may never render conclusions of law,” Goodman v. Harris County, 571
F.3d 388, 399 (5th Cir. 2009), or opinions on legal issues. Estate of Sowell v. United
States, 198 F.3d 169, 171-72 (5th Cir. 1999). Likewise, it is the Court’s job – not an
expert witness’s – to instruct the jury as to the applicable law. See, e.g. Brown v. Nat’l
R.R. Passenger Corp., 2011 WL 1130545, at *7 (S.D. Miss. Mar. 28, 2011); Marlow v.
BellSouth Telecomms., Inc., 2013 WL 1752384, at *6 (S.D. Miss. Apr. 23, 2013); BNY
Mellon, N.A. v. Affordable Holdings, Inc., 2011 WL 2746301, at *1 (N.D. Miss. July
12, 2011). Moreover, although “[a]n opinion is not objectionable just because it
embraces an ultimate issue” in the case, FED. R. EVID. 704(a), an expert witness is
not permitted to “tell the jury what result to reach . . . .” Matthews v. Ashland Chem.,
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Inc., 770 F.2d 1303, 1311 (5th Cir 1985).
In summary, the jury’s job is to determine the facts, and to apply the law that
the Court provides them to those facts. The purpose of expert testimony is to assist
the jury in determining facts. Therefore, the Court sua sponte provides the following
general limitation on all the experts’ testimony: no expert may provide legal opinions
or instruct the jury as to the applicable law, and no expert may directly tell the jury
what result to reach in this case. Although parties are free to offer expert testimony
as to the customs or standards in an industry or profession, Spartan Grain & Mill
Co. v. Ayers, 517 F.2d 214, 219 (5th Cir. 1975), no expert will be permitted to provide
legal opinions or instructions of law masquerading as testimony about insurance
industry practices or customs.
The Court understands that this can be a difficult line to walk. However, some
opinions are unquestionably outside the scope of permissible expert testimony. For
example, an expert witness may not instruct the jury as to the duties Mississippi law
imposes on the parties. Likewise, an expert witness may not express an opinion as to
whether particular actions or omissions constituted negligence. An expert may,
however, explain how insurance markets work. An expert may also explain industry
standards and express an opinion as to whether particular actions or inactions
complied with those standards.
The Court declines to sift through the experts’ reports line-by-line and separate
the admissible opinions from the inadmissible ones. But it appears to the Court that
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the primary purpose of all three experts – Hedges, Manes, and Simpson – is to simply
tell the jury that Defendant was or was not negligent and provide ostensible reasons
in support of that opinion, often couched in terms of Mississippi law. The Court will
not permit that. If the parties need further clarification on this issue, they are free to
raise the issue at trial, but the Court suspects that the attorneys of record know
where the line is and can adequately prepare their witnesses.
That being said, both parties asserted multiple arguments as to why the other
party’s expert(s) should be barred from testifying at trial. However, the Court’s ruling
here obviates the need to address most of those arguments because much of what
each party finds objectionable about the opposing expert(s) is inadmissible anyway,
for the reasons provided above.
Therefore, the Court grants in part and denies in part Plaintiff’s Motion to
Exclude [169] the testimony of Defendant’s expert, Van Hedges; Defendant’s Motion
to Strike [173] the testimony of Plaintiff’s expert, James Simpson; and Defendant’s
Motion to Strike [175] the testimony of Plaintiff’s expert, Michael Manes. The Court
grants all three motions as provided above: no expert may provide legal opinions or
instruct the jury as to the applicable law, and no expert may directly tell the jury
what result to reach in this case. The Court presently denies the motions in all other
respects.
If there are any other issues that needs to be addressed – such as qualification
to provide expert testimony regarding insurance industry standards, for example –
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the parties are free to raise them at trial outside the presence of the jury. The experts’
reports are full of so many inadmissible legal opinions and instructions, it would be
an inefficient use of the Court’s time to separate the good from the bad and then
determine whether the parties’ other arguments have any bearing on what’s left. The
attorneys should talk to their experts, get the testimony cleaned up as provided by
this order, and then raise any lingering issues at trial.
SO ORDERED AND ADJUDGED this 31st day of July, 2019.
/s/

Keith Starrett
KEITH STARRETT
UNITED STATES DISTRICT JUDGE

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