Cunningham v. Travelers Home and Marine Insurance Company

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge S. Kato Crews
Case No. 1:24-cv-01806-SKC-NRN
SAMUEL CUNNINGHAM,
Plaintiff,
v.
TRAVELERS HOME AND MARINE INSURANCE COMPANY,
Defendant.
ORDER GRANTING AND DENYING IN PART PLAINTIFF’S MOTION TO
STRIKE DEFENDANT’S RETAINED EXPERT AUBREY CORWIN, OR, IN
THE ALTERNATIVE, FOR A JURY INSTRUCTION REGARDING HER
ATTEMPTED INTERFERENCE WITH PLAINTIFF’S EXPERT WITNESS
(DKT. 93)
The above referenced Motion (Dkt. 93) is fully briefed and before the Court.
This is an insurance bad faith case arising from a car accident. But the issue currently
before the Court is several degrees removed from the claims and defenses in the case.
The 	current 	issue 	arises 	from 	a 	defensive 	polemic 	Defendant’s 	vocational
rehabilitation 	expert, 	Aubrey 	A. 	Corwin, 	sent 	directly 	to 	Plaintiff’s 	vocational
rehabilitation expert, 	Reg Gibbs, after Gibbs criticized Corwin’s experience 	or
qualifications in his expert report and deposition testimony.1
1 As the Court understands it, both experts were retained as affirmative experts with
Gibbs also retained as a rebuttal expert.
Case No. 1:24-cv-01806-SKC-NRN Document 104 filed 09/17/26 USDC Colorado
pg 1 of 8

2
The parties’ briefing on the Motion is not so helpful. Plaintiff embellishes the
facts and circumstances to an unnecessary degree, while Defendant severely
downplays the significance of the highly unusual and inappropriate conduct of its
expert witness vis-à-vis an opposing expert witness. Plaintiff argues Corwin’s rebuke
threatens a civil suit for libel and slander against Gibbs “as well as reports to their
shared credentialing body based upon his opinions rendered in this case.” Dkt. 93 p.2
(emphasis in original). Plaintiff further contends Corwin’s conduct in sending the
invective is akin to witness tampering or an attempt to influence the testimony of, or
otherwise intimidate, an opposing expert witness. Id. pp.6-7. Plaintiff asks the Court
to employ its inherent authority to sanction litigation abuses by striking Corwin, or
in the alternative, giving an adverse inference instruction at trial.
Defendant argues the letter only raises Corwin’s ethical concerns over Gibbs’
attacks on her credentials in this litigation. See generally Dkt. 97. Defendant
surmises:
Ms. Corwin’s letter only addresses Mr. Gibbs’ personal attacks on her.
The same does not discuss any of Mr. Gibbs’ opinions related to Plaintiff,
this case, or any other case. She offers no critique of his opinions or
discussion of his methodology or any other matter concerning his
analysis of Mr. Cunningham’s claims. Ms. Corwin strictly limited her
professional grievance with Mr. Gibbs to his personal attacks on her
character and qualifications that she has identified as being false.
Id. p.4.
Case No. 1:24-cv-01806-SKC-NRN Document 104 filed 09/17/26 USDC Colorado
pg 2 of 8

3
In the Court’s view, the truth of the matter is somewhere in between the
parties’ characterizations. The most salient lines from Corwin’s misguided missive
are these:
• 	“Upon reviewing the . . . report you issued in the Samuel Cunningham
case, I was astounded by your decision to delve into your opinions
regarding my qualifications and experience.”
• 	“[Y]our attack of my qualifications and experience is in violation of the
CRC Codes of Ethics.”
• 	“Your commentary concerning my qualifications and experience violates
enforceable 	ethical 	standards, 	including 	those 	prohibiting
disparagement, unprofessional criticism, and failure to uphold integrity
in professional relationships.”
• 	“Your decision to issue a report questioning my qualifications and
experience is the antithesis of professional courtesy.”
• 	“Your report in the Cunningham matter violates these standards in
multiple respects.”
• 	“Further, 	your 	uninformed 	attempt 	to 	critique 	my 	professional
background exceeds the scope of your retention in this matter, as was
addressed during your deposition on June 23, 2025.”
• 	“And to be clear, this is not the first time you have done this; however,
this was the most egregious.”
• 	“The statements contained in your report constitute libel, as they
involve false assertions made with the intent to damage my professional
reputation. These statements also constitute slander, as you reiterated
and affirmed the same false assertions in sworn testimony.”
• 	“Consider this letter formal notice that multiple courses of action are
available to me in response to your unprofessional and tactless conduct.”
See generally Dkt. 97-1.
Case No. 1:24-cv-01806-SKC-NRN Document 104 filed 09/17/26 USDC Colorado
pg 3 of 8

4
The evidence is that Corwin acted of her own accord. She neither coordinated
with Defendant or defense counsel over the letter, nor informed them of it after the
fact.
LEGAL PRINCIPLES
Federal courts have broad discretion to exercise their inherent powers to
sanction a full range of litigation misconduct that abuses the judicial process. Lee v.
Max Int’l, LLC, 638 F.3d 1318, 1320 (10th Cir. 2011). These inherent powers are
“governed not by rule or statute but by the control necessarily vested in courts to
manage their own affairs so as to achieve the orderly and expeditious disposition of
cases.” Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) (internal quotation and
citation omitted). This discretion includes “the power to exclude or admit expert
testimony . . . and to exclude testimony of witnesses whose use at trial is in bad faith
or would unfairly prejudice an opposing party.” See Campbell Indus. v. M/V Gemini,
619 F.2d 24, 27 (9th Cir. 1980) (citations omitted).
ANALYSIS
Corwin’s broadside can reasonably be read to threaten Gibbs with litigation or
reporting him to licensing or other governing authorities. After accusing Gibbs of
violating “CRC Codes of Ethics” and of libeling and slandering her, she threatens that
he should “[c]onsider this letter formal notice that multiple courses of action are
available to me in response to your unprofessional and tactless conduct.” (Emphasis
added.) The fact she doesn’t mention a lawsuit doesn’t nullify a threat of litigation
Case No. 1:24-cv-01806-SKC-NRN Document 104 filed 09/17/26 USDC Colorado
pg 4 of 8

5
when reading the letter as a whole. And while she takes issue with Gibbs’ attacks on
her credentials—attacks she takes personally—his commentary emanates from his
expert report(s) and the opinions he offers in this case. In other words, the letter is
not completely detached from Gibbs’ opinions in this case despite any long-standing
beef between these experts.
It is not unusual in litigation for a rebuttal expert to offer an opinion on the
relevance of the opposing expert’s qualifications or experience. See, e.g., Fed. R. Evid.
702 (“A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise[.]”); In re
Cessna 208 Series Aircraft Prods. Liab. Litig., No. 05-MD-1721-KHV, 2009 WL
1649773, at *1 (D. Kan. June 9, 2009) (“[A] portion of the defense expert reports
attack the qualifications of plaintiff’s experts, which is primarily relevant to the
Court’s pre-trial determination under Daubert and may not ultimately be admissible
at trial.”); Bachmann v. Hartford Fire Ins. Co., 323 F. Supp. 3d 1356, 1360 (M.D. Fla.
2018) (“[T]he parties’ remaining reliability and relevance disputes must be decided
by the jury—preferably based on the litigants’: [ ] presentation of contrary evidence,
such as testimony from the litigant’s own expert witness providing both contrary
opinions and criticism of . . . the opposing expert’s qualifications and the inaccuracy
or unreliability of his or her opinions[.]”). Which makes Corwin’s conduct all the more
peculiar and concerning. But because Corwin acted alone, the Court is hard pressed
Case No. 1:24-cv-01806-SKC-NRN Document 104 filed 09/17/26 USDC Colorado
pg 5 of 8

6
to exercise its inherent power with a sanction that penalizes Defendant for the
conduct of a retained expert who went rogue.
A testifying witness’s credibility is always at issue. Fed. R. Evid. 607 (“Any
party, 	including 	the 	party 	that 	called 	the 	witness, 	may 	attack 	the 	witness’s
credibility.”); see also EEOC v. Flasher, 986 F.2d 1312, 1317 (10th Cir. 1992) (“In the
final analysis, 	the 	[trier of 	fact] 	is 	required to 	. 	. 	. 	assess 	the 	credibility 	of
witnesses[.]”); United States v. Mike, 655 F.3d 167, 180 (3d Cir. 2011) (“[C]redibility
is always an issue whenever any witness testifies.”). Corwin has been qualified as an
expert witness in vocational rehabilitation, loss of earning capacity or life care
planning, in at least 15 different state and federal courts. Dkt. 87-2 p.3. And she has
testified in deposition or trial in at least 86 cases. Dkt. 87-2 pp.5-13. The fact that
she, as an experienced retained expert witness, would react in this fashion to an
opposing expert based on opinions he expressed in his report(s) or deposition in the
middle of litigation, impugns her credibility.
A jury may consider evidence of a witness’s prior conduct when that conduct
has a logical tendency to bear on the witness’s credibility—such as by demonstrating
a concrete reason to doubt the accuracy or truthfulness of the testimony. See United
States v. Abel, 469 U.S. 45, 52 (1984). One method of impeaching a witness’ credibility
is by showing the witness has a bias. See United States v. Baldridge, 559 F.3d 1126,
1135 (2009) (“It is permissible impeachment to expose a witness’s bias.”). Bias is “the
relationship between a witness and a party which might cause the witness to slant
Case No. 1:24-cv-01806-SKC-NRN Document 104 filed 09/17/26 USDC Colorado
pg 6 of 8

7
his testimony for or against the party.” Id. (citing Abel, 469 U.S. at 52). “Bias may be
induced by a witness’ like, dislike, or fear of a party, or by the witness’ self-interest.
Proof of bias is almost always relevant because the jury, as finder of fact and weigher
of credibility, has historically been entitled to assess all evidence which might bear
on the accuracy and truth of a witness’ testimony.” Id. (emphasis added); see also
United States v. Thompson, 359 F.3d 470, 476 (7th Cir. 2004) (“We cannot agree that
there is a general requirement that the threat of a party must be related specifically
to a witness’ courtroom testimony before such evidence and the suggestion of
resulting bias can be introduced on cross-examination.”). “A successful showing of
bias on the part of a witness would have a tendency to make the facts to which he
testified less probable in the eyes of the jury than it would be without such testimony.”
Abel, 469 U.S. at 51. The rules of evidence allow “wide latitude for the jury to assess
possible witness bias.” Baldridge, 559 F.3d at 1136.
Here, the lengths to which Corwin went—in the middle of litigation—to
safeguard her reputation provides a basis for the jury to infer a self-interested motive
in avoiding blame and portraying events in a manner favorable to herself, and
consequently, to consider that motive in assessing the credibility of her testimony.
Striking her as a witness or instructing the jury on an adverse inference would
unfairly penalize Defendant, who was unaware of her unorthodox actions. The Court
will instead allow Plaintiff to use Corwin’s letter during her cross-examination at
Case No. 1:24-cv-01806-SKC-NRN Document 104 filed 09/17/26 USDC Colorado
pg 7 of 8

8
trial to impeach her credibility. The parameters of that use will need to be discussed
before her testimony.
* 	* 	*
For 	the 	reasons 	shared 	above, 	Plaintiff’s 	Motion 	to 	Strike 	Defendant’s
Retained Expert Aubrey Corwin, Or, In the Alternative, For A Jury Instruction
Regarding Her Attempted Interference with Plaintiff’s Expert Witness (Dkt. 93) is
GRANTED IN PART and DENIED IN PART. It is GRANTED insofar as Plaintiff
sought the Court’s exercise of its inherent authority to sanction Corwin’s litigation
misconduct and DENIED insofar as the specific sanctions Plaintiff sought.
DATED: September 17, 2026.
BY THE COURT:
__ ________________________
S. Kato Crews
United States District Judge
Case No. 1:24-cv-01806-SKC-NRN Document 104 filed 09/17/26 USDC Colorado
pg 8 of 8