Experts Attempted to Present Legal Opinions Disguised as Industry Standards
Posted on May 23, 2025 by Expert Witness Profiler
Defendants 1536 Blue Jay Way, LLC and Michael Herman (collectively, Blue Jay Way) have brought claims against Defendant LMID, Inc. and others for negligence and negligence per se related to the renovation of a high-end home.
Plaintiff Travelers has been defending its insured, Defendant LMID, Inc. (LMID), in state court since June 2020.
Travelers has brought this action seeking: (1) a declaration that it has no duty to defend LMID in the state court action; (2) a declaration that it has no duty to indemnify LMID; and (3) reimbursement for defense costs incurred.
In January 2025, LMID and Blue Jay Way each disclosed an expert witness under Federal Rule of Civil Procedure 26(a)(2).
LMID’s expert, Joseph Oliva, is an attorney whose practice focuses on insurance coverage disputes. Oliva was asked to provide an opinion on “whether the allegations [in] the complaint and/or extrinsic evidence (discovery) . . . constitutes an occurrence under California insurance industry standards and whether the claims against [LMID] fall within the scope of the definition of property damage.” In his report, he concludes that the claims against LMID fell within the terms of the policy and that Travelers is obligated to defend and indemnify in the underlying action. Blue Jay Way’s expert, Peter Schulz, is also an attorney with experience in insurance coverage matters. Schulz’s opinions relied on Oliva’s analysis and his review of Oliva’s report.
However, Travelers filed a motion to exclude Oliva’s and Schulz’s testimony.
Insurance Expert Witnesses
Joseph Oliva is an attorney licensed and admitted to practice before all courts of the states of California, Texas, Arizona, and Nevada. He is a shareholder of the law firm of Joseph Oliva & Associates, P.C.
Oliva has been retained as an expert on sixteen matters, provided testimony on four matters, three of which were California arbitrations and one Arizona State Court action.
Peter Schulz is an attorney at law, duly licensed and admitted to practice before all courts of the states of California. He is the sole shareholder of the law firm of Schulz Brick & Rogaski, APC.
Schulz has taught in seminars attended by attorneys, brokers, and insurance claims adjusters in California. In 2023, he was a lecturer in a program sponsored by The Seminar Group entitled “Insurance in the Construction Industry,” where he presented on Cumis/Civil Code Section 2860 – Practical considerations for policy holders and for carriers.
Discussion by the Court
Travelers moved to exclude Oliva’s and Schulz’s testimony on two grounds. First, it argued that the experts are not qualified to testify about insurance industry standards because they are attorneys who have never worked in the insurance industry itself. Second, Travelers contended that the experts’ opinions are improper legal conclusions. While the reports refer to “insurance industry standards” and “insurance industry practices,” Travelers contends that the experts’ opinions are in fact legal conclusions that rely on legal analysis.
As an initial matter, the Court rejected Travelers’ overbroad argument that Oliva and Schulz are unqualified to opine on insurance industry standards because they are insurance lawyers.
The fact that Oliva and Schulz are attorneys does not mean that they could not have acquired the requisite expertise to testify about insurance industry standards.
But this motion is less about qualifications and more about the subject of the proffered opinions. Oliva and Schulz did not offer opinions on insurance industry standards that would assist the trier of fact; rather, they attempted to present legal opinions disguised as industry standards—much of it amounting to little more than legal briefing.
Nowhere in the reports do the experts explain how their conclusions are based on their experiences or specialized knowledge from litigating insurance cases. Though the reports refer to some nonlegal materials—e.g., insurance bulletins and pamphlets—the Court held that those references appear to be intertwined with the experts’ legal analysis.
It is unclear how the experts would be able to excise any legal analysis from their testimony, or how any nonlegal opinions would be based on their specialized knowledge from litigating insurance cases.
Held
The Court granted Plaintiff Travelers Casualty Insurance Company of America’s motion to exclude the testimony of experts Joseph Oliva and Peter Schulz.
Key Takeaway:
Basically, Oliva’s and Schulz’s reports engage in legal analysis, assessing cases and industry materials and applying the law to the facts of this case. In doing so, Defendants have not demonstrated that is it more likely than not that the experts’ knowledge “will help the [Court] to understand the evidence or to determine a fact in issue.”
Case Details:
| Case Caption: | Travelers Casualty Insurance Company Of America V. Lmid, Inc. Et Al |
| Docket Number: | 2:24cv1022 |
| Court Name: | United States District Court, California Central |
| Order Date: | April 18, 2025 |
