UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Lori Carrier and

Valerie Whitman

v. Civil No. 05-cv-430-JD

American Bankers Life

Assurance Co. of Florida

O R D E R

Lori Carrier and Valerie Whitman filed a putative class

action, alleging that American Bankers Life Assurance Company of

Florida breached the terms of its credit insurance policies with

them and other putative class members when it failed to refund

the unearned portion of premiums that had been prepaid as part of

their vehicle financing. Carrier and Whitman move to strike

American Banker's expert disclosure and to bar the testimony of

American Banker's expert, Robert Wilcox. American Bankers

objects to the motion.

Standard of Review

Expert witness testimony is admissible if the testimony will

assist the jury, if the witness is qualified, "if the testimony

is based on sufficient facts or data, [if] the testimony is the

product of reliable principles and methods, and [if] the witness

has applied the principles and methods reliably to the facts of

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the case." Fed. R. Evid. 702. To assist the jury, the testimony

must be relevant in the sense that the opinion "likely would

assist the [factfinder] to understand or determine a fact in

issue." Ruiz-Troche v. Pepsi Cola of P.R. Bottling Co., 161 F.3d

77, 81 (1st Cir. 1998). To be qualified, the expert must have

sufficient background and possess "specialized knowledge that

'will assist the trier of fact to understand the evidence or to

determine a fact in issue.'" Crowe v. Marchand, --- F.3d ---,

2007 WL 3037990 at *2 (1st Cir. Oct. 19, 2007). The party

offering expert witness evidence bears the burden of establishing

that the expert is qualified to give the opinion and that the

opinion to be offered is both reliable and relevant within the

meaning of Rule 702. See Corwin v. Walt Disney Co., 475 F.3d

1239, 1250 (11th Cir. 2007); United States v. Vargas, 471 F.3d

255, 265 (1st Cir. 2006); Marmo v. Tyson Fresh Meats, Inc., 457

F.3d 748, 757-58 (8th Cir. 2006); Pride v. BIC Corp., 218 F.3d

566, 578 (6th Cir. 2000). 

"In our legal system, purely legal questions . . . [are]

exclusively the domain of the judge." Nieves-Villanueva v.

Soto-Rivera, 133 F.3d 92, 99 (1st Cir. 1997). An expert

witness's opinions on legal standards or principles are generally

inadmissible. Id. Therefore, "[a] district court has broad

discretion to exclude expert opinion evidence about the law that

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would impinge on the roles of the judge and the jury." Pelletier

v. Main St. Textiles, LP, 470 F.3d 48, 54 (1st Cir. 2006); N.

Heel Corp. v. Compo Indus., Inc., 851 F.2d 456, 468 (1st Cir.

1988). 

Discussion

Carrier and Whitman contend that Robert Wilcox's expert

report is insufficient, that his opinions about the law and legal

standards are inadmissible, and that he is not qualified to give

legal opinions. American Bankers responds that because it

anticipates that the case will be tried to the court, rather than

to a jury, Wilcox's opinions will be helpful and are not likely

to cause confusion. American Bankers also defends Wilcox's

opinions as being based on his experience in the insurance

industry.

In his expert report, presented as a declaration, Robert

Wilcox states that he is an actuary, that he served as insurance

commissioner in Utah for four years, that he has been active in

the National Association of Insurance Commissioners, and that he

has provided consulting services in the insurance industry. He

states that he is "familiar with the administrative and

regulatory aspects of credit life and disability insurance." 

Decl. ¶ 6. He purports to explain the legal requirements of

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state law for credit insurance policies, quoting or summarizing

the laws of New Hampshire, Idaho, Kansas, Maine, Massachusetts,

Michigan, New Jersey, North Dakota, Ohio, Oregon, Rhode Island,

Texas, and Montana. He also reviewed sample insurance agreements

and provides his interpretation of those agreements. He

concludes that "[l]aws of the various jurisdictions will cause

variations in the ability of American Bankers to delegate

responsibility to motor vehicle dealer/creditors and also

variations in the ability of American Bankers to monitor

practices of motor vehicle dealer/creditors." Id. ¶ 8(h).

Wilcox, who is an actuary and not a lawyer and who served as

insurance commissioner only in Utah, provides no basis for his

asserted expertise in the laws of the various states he

discusses. Even if he were qualified to give the opinions he

provides, which does not appear to be the case, those opinions

merely parrot the law, which is the province of the court. 

Therefore, Wilcox's opinions will not assist the court in

deciding the class certification issues or the ultimate liability

issues in this case and are excluded.

 

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Conclusion

For the foregoing reasons, the plaintiffs' motion to exclude

the opinions of the defendant's expert witness, Robert Wilcox,

(document no. 48) is granted. 

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

October 25, 2007

cc: Dustin T. Brown, Esquire

Frank Burt, Esquire

James E. Butler, Jr., Esquire

Kate S. Cook, Esquire

Jason Lance Crawford, Esquire

J. Clay Fuller, Esquire

Wilbur A. Glahn, III, Esquire

Farrokh Jhabvala, Esquire

Edward K. O'Brien, Esquire

Joel O. Wooten, Jr., Esquire

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