A Kentucky federal court recently granted a motion to exclude expert testimony by a former Kentucky Supreme Court judge concerning bad faith issues. Sullivan v. American International Group, Inc., No. 07-254-JMH (E.D.K.Y. July 22, 2008).

The plaintiff asserted that an insurance company and its claim handlers engaged in bad faith settlement practices concerning his insurance claim arising out of an automobile accident. Before trial, the defendants proffered Judge James Keller, formerly a judge on the circuit court and the state supreme court in Kentucky, as an expert witness concerning bad faith insurance claims, among other things. The plaintiff moved to exclude Judge Keller on the basis that he was not appropriately qualified to testify as an expert on the bad faith issues.

The court initially noted that Judge Keller testified at deposition that he had never adjusted an insurance claim or managed individuals who had, never taken a class on adjusting, evaluating or handling insurance casualty claims, never handled a bad faith case while in private practice and never published peer-reviewed articles, treatises or books on the subject of insurer bad faith. Therefore, the court found that Judge Keller lacked the “knowledge, skill, experience, training, or education” required by Federal Rules of Evidence Rule 702 to testify as an expert witness “on the subject of investigating, adjusting, evaluating , and litigating bad faith insurance claims.” Of note, however, the Court did hold that Judge Keller could testify as to bad faith issues surrounding the defendants’ mediation conduct.

The court reached this conclusion despite the fact that Judge Keller had previously been qualified as an expert by plaintiff’s counsel in another bad faith suit, a fact the court noted as “ironic[]” but ultimately non-determinative.