Expert Witnesses in Insurance Claim Litigation: Daubert Challenges, Claims Handling Experts, and Demolishing Carrier Experts

Insurance litigation is won and lost on expert testimony. The carrier will have its engineers, its hygienists, its estimators — all of whom will testify that the damage is less than you think, was caused by something other than what you think, and costs less to repair than you think. Your job is twofold: retain your own qualified experts, and demolish the carrier’s experts before the jury ever hears from them. This article covers how to do both.

Types of Experts Used in Insurance Litigation

Insurance property disputes can involve a wide range of expert disciplines. The specific experts you need depend on the type of loss, the basis for the carrier’s denial or underpayment, and what issues are genuinely in dispute. Here are the most common categories:

Claims Handling Experts

These are retired adjusters, former claims managers, or insurance industry veterans who testify about whether the carrier followed proper claims handling procedures. A claims handling expert can walk the jury through what a properly investigated and fairly adjusted claim looks like — and then contrast it with what the carrier actually did. This is some of the most powerful testimony available to a policyholder, and it is covered in detail below.

Engineers

Structural engineers, forensic engineers, and cause-and-origin engineers are used to determine what caused the damage, how severe it is, and what repairs are required. In insurance litigation, the carrier almost always has an engineer — usually one who attributes damage to pre-existing conditions, wear and tear, or anything other than the covered peril. Your own engineer can rebut those opinions with proper methodology. For a detailed guide on challenging carrier engineer reports, see Defeating Carrier Engineer Reports.

Industrial Hygienists

Industrial hygienists handle mold, asbestos, silica, smoke particulate, and air quality testing. In fire and water damage claims, the carrier’s hygienist may test only a few locations (conveniently finding “normal” results) while ignoring the areas with the worst contamination. Your hygienist needs to conduct comprehensive testing using proper protocols, and be prepared to explain why the carrier’s limited sampling was scientifically inadequate.

Estimators and Xactimate Experts

These experts testify about proper scoping, pricing, and estimating methodology. They can show the jury that the carrier’s estimate omitted entire categories of damage, used incorrect pricing, or applied improper depreciation. For background on estimating disputes, see Scoping the Loss.

Forensic Accountants

In business interruption claims, forensic accountants calculate the actual financial losses sustained during the period of restoration. They reconstruct what the business would have earned but for the loss, and they can expose the carrier’s attempts to minimize the loss period or undercount continuing expenses.

Construction Experts

Licensed general contractors and construction consultants testify about the scope, cost, and methodology of repairs. They can explain to the jury why the carrier’s proposed “repair” is inadequate — why you cannot just patch three shingles on a 30-year-old roof and call it restored, or why a spot-paint repair on a fire-damaged wall will never match.

Fire Investigators and Meteorologists

Certified fire investigators (CFIs) determine the cause and origin of fires following NFPA 921 methodology. The carrier will retain its own fire investigator whenever it suspects arson or wants to attribute the fire to a non-covered cause. In wind and hail claims, meteorologists testify about weather conditions at the specific location on the date of loss — confirming hail size, wind speeds, and whether the carrier’s claim that “no significant weather event occurred” is contradicted by objective data.

Daubert Challenges and California’s Equivalent

Before an expert can testify at trial, the opposing side has the opportunity to challenge whether the expert’s testimony is admissible. This is where the fight over expert witnesses often begins — and where cases can be won or lost before the jury hears a single word.

Daubert v. Merrell Dow Pharmaceuticals (1993)

In federal court, the standard for admitting expert testimony comes from Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Daubertestablished that the trial judge acts as a “gatekeeper” who must ensure that expert testimony is both relevant and reliable before allowing the jury to hear it. The court identified several factors for evaluating reliability:

• Whether the theory or technique can be (and has been) tested
• Whether it has been subjected to peer review and publication
• The known or potential error rate
• Whether there are standards controlling the technique’s operation
• Whether the methodology is generally accepted in the relevant scientific community

A Daubertchallenge — formally a motion in limine — asks the judge to exclude the opposing party’s expert because their testimony does not meet these reliability requirements. If the motion succeeds, the expert cannot testify. In an insurance case, getting the carrier’s key expert excluded can be case-dispositive.

California’s Standard: Sargon and Evidence Code §801–802

California does not follow Daubert directly. For novel scientific evidence, California uses the Kelly/Fryestandard, which asks whether the scientific technique is “generally accepted” in the relevant scientific community. But for general expert qualifications and reliability, California Evidence Code §801 and §802 govern: an expert may testify only if their opinion is “based on matter … that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject.”

The California Supreme Court sharpened this in Sargon Enterprises, Inc. v. University of Southern California, 55 Cal.4th 747 (2012). Sargon established that California trial courts have a gatekeeping role similar to Daubert: they must exclude expert opinion based on “speculative, conjectural, or unreliable” methodology. The opinion need not use the “best” methodology, but it must rest on somemethodology logically connected to the opinion offered. An expert who asserts a conclusion without explaining how they got there — or whose reasoning contains an “analytical gap” — can be excluded under Sargon.

How to Challenge the Carrier’s Expert

A successful challenge to the carrier’s expert can attack any of the following:

• Qualifications: Does the expert actually have expertise in the specific area they are opining about? A mechanical engineer testifying about roofing systems is opining outside their field. A general contractor with no structural engineering credentials offering opinions on foundation stability may not be qualified.
• Methodology:Did the expert follow established protocols? An engineer who did not follow applicable ASTM standards, an industrial hygienist who deviated from EPA or AIHA sampling guidelines, or a fire investigator who ignored NFPA 921 — all are vulnerable to exclusion.
• Reliability of opinions:Is there an “analytical gap” between the data the expert collected and the conclusions they reached? Did they ignore contrary evidence? Did they reach conclusions that are not supported by their own findings?
• Bias:Does the expert derive the overwhelming majority of their income from insurance company assignments? Have they always reached the same conclusion in every case? Bias alone may not be enough to exclude an expert, but it can be combined with other deficiencies to make the exclusion argument stronger — and it is devastating on cross-examination. For more on identifying bias, see Biased Insurance Experts.

The Carrier’s “Experts” — Common Problems

Insurance companies do not hire neutral experts. They hire professionals with a track record of carrier-favorable findings. Through selection bias, the roster becomes populated by professionals who reliably minimize claims. This is a well-documented systematic carrier practice. Common problems with carrier-retained experts:

The Cause-and-Origin Expert Who Always Finds Arson or Pre-Existing Damage

Some carrier fire investigators find arson or “undetermined cause” at a statistically improbable rate. When an expert’s arson finding rate is dramatically higher than the national average, that is not superior detection — it is predetermined conclusions. The same problem exists with engineers who consistently attribute storm damage to pre-existing conditions.

The “Independent” Engineer Who Is Anything But

The carrier presents its engineer as “independent.” In deposition, ask what percentage of revenue comes from insurance company assignments. If the answer is 80% or more — which it often is — that expert is a vendor whose livelihood depends on producing carrier-favorable results. The financial relationship is discoverable and should be explored thoroughly. See Engineering Reports vs. Coverage for more on this dynamic.

Experts Opining Outside Their Field

A mechanical engineer opining on roofing. A civil engineer offering opinions on fire causation. A general contractor testifying about mold contamination. Experts who reach conclusions outside their actual field are vulnerable to exclusion under both Daubert and Sargon. Always check the expert’s credentials against the specific opinions they are offering.

The Car Key Expert Problem

One of the best-known examples of junk expert testimony in insurance litigation involves “car key experts” — witnesses retained by auto insurers to testify that a stolen vehicle could only have been started with the original key, supporting denial of the theft claim. These experts claimed modern immobilizer systems were impenetrable, so the insured must have been involved. Courts eventually discredited them: thin qualifications, no peer-reviewed methodology, and conclusions contradicted by actual automotive security research. A cautionary tale about accepting carrier expert opinions at face value.

Claims Handling Experts — The Policyholder’s Most Powerful Weapon

Of all the expert categories available to policyholders in insurance litigation, claims handling experts may be the most devastating. These are former carrier insiders — retired adjusters, claims managers, and claims directors who spent decades inside the system and know exactly how it works. Their testimony bridges the gap between the dry language of the policy and the reality of how the carrier actually handled the claim.

What Claims Handling Experts Testify About

A claims handling expert can testify about:

• Industry standardsfor claims investigation, documentation, and resolution — what a properly handled claim looks like from intake to settlement
• Carrier manuals and training materials— how the carrier’s own internal guidelines required the claim to be handled, and how those guidelines were violated
• Proper investigation protocols— what steps should have been taken (site inspections, documentation, testing, expert retention) and which ones were skipped or performed inadequately
• The claims file itself— internal notes, supervisor directives, reserve changes, and activity logs that reveal what the carrier was actually thinking and doing behind the scenes
• Systematic carrier practices— connecting the handling deficiencies in this specific claim to broader patterns of carrier claims tactics that affect policyholders across the board

Showing the Jury What Should Have Happened

The most effective claims handling testimony follows a simple structure: here is what the industry standards required, here is what this carrier’s own manuals required, and here is what actually happened. The gap between the standard and the reality is where bad faith lives. A skilled claims handling expert can make that gap visible and visceral for the jury.

For example, when two experts reach conflicting conclusions about causation, industry standards require the carrier to investigate the discrepancy — not simply adopt the opinion favoring denial. If the carrier’s own field engineer says the storm caused the damage but a desk reviewer overrides that finding without visiting the property, a claims handling expert can explain that deviation to the jury in terms they understand.

The Value of a Former Carrier Insider

There is something uniquely powerful about a witness who spent decades inside the insurance industry testifying against a carrier. Juries understand this person knows the system from the inside. They are not speculating — they did the same job and can speak from direct experience. Their credibility comes from having been part of the very system they are now critiquing.

How to Build Your Expert Case

Retain Your Own Experts Early

Do not wait for the carrier to send its engineer and then react. Retain your own qualified experts as early as possible. If there is a question about cause and origin, get your own fire investigator on-site while the evidence is still undisturbed. If the carrier is disputing the extent of damage, get your own engineer and contractor to document conditions before any repairs or further deterioration occur.

Document Everything During the Carrier’s Expert Inspection

When the carrier sends its expert, you have the right to be present. Document everything: time on-site, areas inspected vs. skipped, testing performed, equipment used, and statements made. This documentation is invaluable when challenging the thoroughness of their investigation. See Recording Insurance Inspections for more on your rights.

Preserve Independent Access to Evidence

Get your own cause-and-origin investigation done before the carrier’s expert has exclusive access to the evidence. In fire claims, the carrier may attempt to control the scene or remove evidence for “testing” before you can inspect it. If destructive testing is involved, demand that your expert be present and that split samples are preserved.

Qualifying and Disqualifying Experts

What Makes a Qualified Expert

• Education and training: Relevant degrees, certifications, and continuing education in the specific field
• Hands-on experience:Years of practical work in the specific area they are testifying about — not adjacent areas, not general experience, but the specific subject matter
• Publications and peer recognition: Published research, presentations at industry conferences, contributions to standards development
• Methodology: A clear, reproducible methodology that follows applicable industry standards (ASTM, NFPA 921, EPA protocols, etc.)
• Balance: An expert who has worked for both policyholders and insurers is harder to paint as biased than one who works exclusively for one side

Red Flags for Unqualified or Biased Experts

• No relevant publications or contributions to the field
• Limited or no experience in the specific area they are opining about
• Opinions that consistently favor one side across hundreds of assignments
• Revenue overwhelmingly derived from a single carrier or small group of carriers
• Prior Daubert or Sargonchallenges where the expert’s testimony was excluded — this history is discoverable and devastating
• Conclusions that contradict the expert’s own data or the physical evidence visible at the site
• Boilerplate reports that read identically across multiple claims with only the address and date changed

Deposition Strategies for Exposing Bias

The deposition of the carrier’s expert is your best opportunity to build the record for a Daubert or Sargon challenge. Key lines of questioning:

• What percentage of your income comes from insurance company assignments?
• How many assignments from this specific carrier in the past five years?
• In what percentage did you find in favor of the carrier’s position?
• Have you ever been the subject of a Daubert or Sargon motion? What was the outcome?
• Did you follow [applicable standard — ASTM, NFPA, EPA] in your investigation? If not, why not?
• Were you aware of [contrary evidence] when you formed your opinion?
• Have you ever reached a conclusion unfavorable to the carrier that retained you?

An expert who cannot point to a single assignment where they found against the carrier has a credibility problem that no amount of credentials can overcome.

Checking an Expert’s Track Record

Before deposing the carrier’s expert, research their litigation history through PACER (federal) and state court online dockets. Search for prior Daubertchallenges, motions to exclude, and judicial opinions criticizing their methodology. Trial lawyer association databases also track expert challenge histories. An expert previously excluded is significantly more vulnerable to exclusion again, especially if the grounds are similar.

This article is for educational purposes only and does not constitute legal or insurance advice. Expert witness strategy, Daubert challenges, and trial tactics are matters for your litigation attorney. Every claim is different, and your recovery depends on your specific policy language, the facts of your loss, and applicable state law. For guidance on your particular situation, consult a licensed Public Adjuster or an attorney experienced in insurance coverage litigation.

Written by Leland Coontz III, Licensed Public Adjuster, CA License #2B53445.