Southwest Airlines Co v Liberty Insurance Underwriters Inc

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
SOUTHWEST AIRLINES CO., 	§
Plaintiff, 	§
§
v. 	§ 	No. 3:19-CV-2218-E
§
LIBERTY INSURANCE 	§
UNDERWRITERS INC., 	§
Defendant. 	§
MEMORANDUM OPINION AND ORDER
Before the Court are the parties’ motions to exclude expert witness testimony.
On October 25, 2025, Plaintiff Southwest Airlines Co. (“Southwest”) filed a Motion
to Partially Exclude Opinions of Steven Plitt (Dkt. No. 109 (“P. Plitt Br.”)) and a
Motion to Partially Exclude Opinions of Shannon Rusnak (Dkt. No. 108 (“P.
Rusnak Br.”)). Defendant Liberty Insurance Underwriters, Inc. (“Liberty”) filed
responses (Dkt. Nos. 120, 122) and briefs (Dkt. Nos. 121 (“D. Plitt Resp.”), 123 (“D.
Rusnak Resp.”)) on November 22, 2024. Southwest filed replies in support of its
motions on December 6, 2024. (Dkt. Nos. 131 (“P. Rusnak Reply”), 132 (“P. Plitt
Reply”).)
Also on October 25, 2025, Liberty filed an Opposed Motion to Strike
Plaintiff’s Testifying Experts. (Dkt. No. 113-2 (“D. Br.”).) Southwest filed its
response on November 22, 2024. (Dkt. No. 118 (“P. Resp.”).) Liberty replied on
December 6, 2024. (Dkt. No. 133 (“D. Reply”).)
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On February 3, 2025, United States District Judge Ada Brown referred the
motions to the undersigned for determination pursuant to 28 U.S.C. § 636(b). (Dkt.
No. 139.) For reasons explained below, the Court denies each of the motions.
I. BACKGROUND
The factual background underlying this lawsuit is set out in the Fifth Circuit’s
opinion reversing the grant of summary judgment and need not be repeated in full
here. See Southwest Airlines Co. v. Liberty Ins. Underwriters, Inc., 90 F.4th 847, 850–51
(5th Cir. 2024). This lawsuit arises out of a computer system failure that disrupted
Southwest’s flight schedule for three days in July 2016 and caused flight cancelations
or delays for approximately 475,000 Southwest customers. The airline attempted to
ameliorate the negative effects on customers in several different ways and at
considerable cost. It issued travel vouchers, discount codes, and loyalty points for
use on future travel; paid cover refunds for alternative travel arrangements; and
increased its advertising for an ongoing fare sale that it extended due to the
disruption.
Southwest claimed these expenses as losses caused by the system malfunction
and looked to Liberty—an excess insurer in its tower of coverage—to pay on a policy
that provided coverage for a system failure. Liberty denied coverage on the basis
that Southwest’s covered losses were less than the amount required to trigger its
excess policy. Specifically, Liberty disputed that certain Southwest expenditures
were losses covered by the policy or contended that the expenditures fell within one
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of the policy’s exceptions to coverage. Southwest filed this lawsuit seeking
contractual and extra-contractual damages relating to Liberty’s denial of coverage.
Liberty designated Steven Plitt, an attorney with decades of experience in
insurance, as an expert witness and disclosed a 115-page report setting out his
observations and opinions. (See Dkt. No. 109-1 (“P. Plitt App.”).) Liberty expects
that he will testify on insurance industry customs and standards under Texas law as
they would have been applied by the insurer in this instance. (Dkt. No. 121 (“D.
Platt Br.”) at 1-2.) Liberty also designated Shannon Rusnak, a certified public
accountant, to testify concerning Southwest’s claimed economic damages. Relevant
here, Rusnak’s damages model does not include certain aspects of claimed loss that
Southwest’s damages expert included.
Southwest moves to exclude certain opinions expressed by Platt and Rusnak.
Specifically, Southwest contends that some of Platt’s opinions should be excluded
because they are purely improper legal conclusions, misstate the law, or were not
properly disclosed under Fed. R. Civ. P. 26(a). With respect to Rusnak, it contends
that she should not be permitted to testify that the policy allowed Southwest to incur
only one kind of compensation cost per customer or that its costs had to be
necessary.
Southwest, too, has identified individuals from whom it might elicit expert
testimony. It retained forensic accountants Daniel Bradley and Kevin Grudzien to
assist the company in its assessment of the impact of the system outage and to
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prepare the company’s loss figure for its insurance claim. (See Dkt. No. 119 (“P.
Resp. App.”) at 5-6.) It has identified them as non-retained experts in this litigation.
(P. Resp. App. 5.) Southwest identified Gregory Thaler, a forensic accountant, as a
retained expert who will testify regarding the company’s loss, and it provided his 52-
page report. (P. Resp. App. 4; D. App. 97, 153.) Finally, Southwest has identified
Michael Quinn, a lawyer, as a rebuttal expert who disagrees with Plitt and may
testify concerning the relationship between insurers and insureds. (P. Resp. App. 21-
25.) Southwest also produced a report from Quinn. (D. App. 572-634.) Liberty
seeks to exclude testimony from each of these experts, either in whole or in part.
II. LEGAL STANDARDS
The admissibility of expert testimony is governed by Fed. R. Evid. 702. That
rule provides that, where specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, “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.” Fed. R. Evid. 702. Rule 704 states that expert
opinion testimony that is “otherwise admissible is not objectionable because it
embraces an ultimate issue to the decided by the trier of fact.” Fed. R. Evid. 704.
“However, neither Rule 702 nor Rule 704 permits an expert witness to offer legal
conclusions.” Lincoln Gen. Ins. Co. v. Valley Transp. Brokerage, Inc., No. H-01-1452,
2002 WL 34370100, at *4 (S.D. Tex. July 22, 2002) (citing Alldread v. City of Grenada,
988 F.2d 1425, 1436 (5th Cir. 1993), and Owen v. Kerr-McGee Corp., 698 F.2d 236, 240
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(5th Cir. 1983)). “Similarly, an expert may not provide testimony that merely
instructs the jury what result to reach.” Id.
The proponent of the expert testimony has the burden to establish
admissibility by a preponderance of the evidence. Am. Can! v. Arch Ins. Co., 597 F.
Supp. 3d 1038, 1044 (N.D. Tex. 2022). “The proponent does not have to
demonstrate that the testimony is correct, only that the expert is qualified and the
testimony is relevant and reliable.” Id. (citing Moore v. Ashland Chem. Inc., 151 F.3d
269, 276 (5th Cir. 1998)). “The standard for relevance is a liberal one.” Hall Arts Ctr.
Off., LLC v. Hanover Ins. Co., 327 F. Supp. 3d 979, 1005 (N.D. Tex. 2018) (quoting
E.E.O.C. v. Manville Sales Corp., 27 F.3d 1089, 1093 (5th Cir. 1994)). “The court’s
inquiry is flexible in that ‘[t]he relevance and reliability of expert testimony turns
upon its nature and the purpose for which its proponent offers it.’” America Can!, 597
F. Supp. 3d at 1044 (quoting United States v. Valencia, 600 F.3d 389, 424 (5th Cir.
2010)).
III. ANALYSIS
A. 	Southwest’s motions to partially exclude Liberty’s expert testimony
1. 	Steven Plitt
In his report, Plitt identifies the several materials he reviewed to prepare his
expert report, including Liberty’s claim file, discovery and documents produced in
litigation, summary judgment briefing, and deposition transcripts. (P. Plitt App. 18-
19.) In this report, Plitt disclaims any intent to render legal opinions, and he notes
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that his opinions concern compliance with industry standards such that, even
without expressly saying so with each opinion, “it is [his] intention to imbibe within
[his] opinions the understanding that [his] opinions are based upon compliance with
industry standards, customs, and practices[.]” (P. Plitt App. 106.) Plitt opined,
among other things, that Liberty reasonably processed Southwest’s claim and came
to the reasonable conclusion that its policy did not provide coverage for costs at issue
in this lawsuit. (P. Plitt App. at 106, 112.) Southwest identifies some of Plitt’s
opinions as excludable because they are either legal conclusions, contrary to law, or
not properly disclosed under Fed. R. Civ. P. 26(a).
Southwest first contends that 14 of Plitt’s opinions constitute legal conclusions
that invade the province of the Court to instruct the jury on the law. (P. Plitt Br. at 3-
10.) Specifically, it asserts that Plitt’s opinions that Liberty’s processing of
Southwest’s claim was consistent with the policy’s implied covenant of good faith
and fair dealing and Texas’s Unfair Claims Settlement Practices Act and his opinion
that Liberty had a reasonable basis for its no-coverage determination are purely legal
opinions. The Court disagrees.
It is well established that an expert witness “may never render conclusions of
law,” because doing so usurps the role of the trial judge in instructing the jury on the
law. America Can!, 597 F. Supp. 3d at 1046 (quoting Goodman v. Harris Cnty., 571
F.3d 388, 399 (5th Cir. 2009)). But Fed. R. Evid. 704 recognizes that an expert
opinion is not excludable because it “embraces an ultimate issue.” And “a legal
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expert may testify as to mixed questions of law and fact.” Wooten v. Collin Cnty.,
Texas, No. 4:18-CV-380, 2021 WL 5834437, at *3 (E.D. Tex. Dec. 9, 2021). Courts
have observed that the line between impermissible questions calling for purely legal
opinions and permissible ones is not an easy one to draw. See America Can!, 597 F.
Supp. 3d at 1046. “Ultimately, the expert must ‘bring more to the jury than the
lawyers can offer in argument.’” Id. (quoting Salas v. Carpenter, 980 F.2d 299, 305
(5th Cir. 1992)).
After reviewing the 14 Plitt opinions that Southwest contends constitute legal
conclusions, the Court concludes that Southwest’s motion should be denied on this
point. “Courts routinely allow testimony from experts within the insurance industry
to testify about the ordinary practices and usages of the industry, while specifically
barring testimony that states a legal conclusion. Id. at 1047. Plitt’s opinions
generally are not pure legal conclusions that instruct the jury on the law, but instead
are mixed questions of fact and law and incorporate his experience and
understanding of insurance practices and standards. His report does “bring more
than the lawyers can offer in argument” and may be helpful to the fact finder. See id.
at 1046.
Additionally, with respect to several of Southwest’s assertions that Plitt is
merely rendering flawed legal opinions, its motion is premised on recasting Plitt’s
opinions about the reasonableness of Liberty’s positions or actions as conclusions on
the law. For example, Southwest attacks Plitt as opining about what the insurance
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policy does and does not cover. (P. Plitt Br. at 5-6.) As one example, Southwest
asserts that “Mr. Plitt claims that ‘voluntarily incurred’ customer compensation costs
are ‘not “solely” because of the System Failure,’ and are therefore not covered ‘by
the Primary Policy.’” (Id. at 5 (citing P. Plitt App. 113-15).) But at the cited portion
of his report, Plitt recounts Liberty’s assessment of the policy and relevant
information obtained in discovery and opines that “[t]here was a reasonable basis for
Liberty to conclude these expenses were not ‘solely’ caused by the subject System
Failure as required to trigger the insuring agreement.” (P. Plitt App. 115.) In this
respect, Plitt’s opinions are not purely legal opinions as to the meaning of the
insurance policy, but are instead opinions about the reasonableness of Liberty’s
actions based on his review of the law and facts. Southwest’s motion is denied
subject to its ability to contest true legal conclusions offered under the guise of expert
testimony at trial.
Southwest next argues that some of Plitt’s proposed testimony should be
excluded because it contradicts conclusions drawn by the Fifth Circuit on appeal or
other law. (P. Plitt Br. at 11-14.) Having reviewed these portions of Plitt’s report,
the Court concludes that his testimony is not subject to exclusion on this basis at this
point. The Court will instruct the jury as to the law and it will do so consistent with
the Fifth Circuit’s decision, and Plitt will not be permitted to testify as to what the
law is. He may, however, testify with respect to the reasonableness of Liberty’s
assessment of Southwest’s claimed loss.
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Finally, Southwest challenges five identified opinions in Plitt’s report as
inadequately disclosed because, in its view, they lack the necessary explanation for
them. (P. Plitt Br. at 16-17.) Reviewing Plitt’s report, however, the Court concludes
that these opinions are predicated on the same analysis underlying the prior opinions
disclosed in the report. These additional opinions are not excludable because the
report did not repeat the analysis.
2. Shannon Rusnak
Liberty retained Rusnak as “an expert forensic accountant” to “offer opinion
testimony within the areas of her expertise controverting opinions expressed by
Plaintiff’s experts relating to the amount and calculation of damages[.]” (Dkt. No.
108-1 (“P. Rusnak App.”) at 2.) Southwest moves to exclude Rusnak’s opinions in
two respects. First, in calculating Southwest’s damages from the system outage,
Rusnak did not include the cost of more than one type of compensation per
customer. Southwest perceives that she is opining that the insurance policy did not
allow multiple compensations and seeks to exclude that opinion as an impermissible
legal opinion. (P. Rusnak Br. at 2.) Second, Southwest seeks to exclude any opinion
by Rusnak that the policy required expenses to be “necessary.” (Id.)
Based on her review of materials provided to her, Rusnak opined that
Southwest’s damages expert arrived at an overstated calculation of expenses incurred
and lost income. (Dkt. No. 124 (“D. Rusnak App.”) at 6.) She opined that the
damages calculation should be less, in part because her calculation did not provide
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for a single customer receiving multiple different kinds of compensation—e.g., travel
credits, discount codes, cover refunds, and loyalty points. She reached her decision
to exclude costs based on her review of industry standards and her assessment that
airlines typically do not compensate customers in more than one way.
Rusnak also disagreed with Southwest’s inclusion of additional advertising
costs as damages that flowed from the system outage. In her view, Southwest’s
decision to extend for eight days a fare sale that was set to end the day after the
outage began was a voluntary one, making the additional advertising costs associated
with that fare sale an expense that did not naturally flow from the system failure.
Southwest asserts that by making that decision to exclude the advertising costs,
Rusnak is opining that the policy requires that loss be “necessary.”
Southwest’s attack on Rusnak as offering excludable legal opinions is not well
founded. Liberty has not offered Rusnak to offer a purely legal opinion about
insurance coverage, and she was clear in her deposition that she is not purporting to
do so. Rusnak is permitted to testify that giving customers multiple types of
compensation falls outside industry norms and that her damages calculation
therefore excluded those costs. See America Can!, 597 F. Supp. 3d at 1047. Likewise,
Rusnak is permitted to testify that she excluded the advertising costs from her
damages model because it did not appear to be a natural and necessary consequence
of the system outage. See Southwest, 90 F.4th at 854–55. Rusnak does not purport to
interpret the policy, and her reasons for excluding certain expenses from her damages
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model is best explored through “[v]igorous cross-examination” and contrary
evidence. See America Can!, 597 F. Supp. 3d at 1044; see also Godo Kaisha IP Bridge 1 v.
Broadcom Ltd., No. 2:16-CV-00134-JRG, 2017 WL 2844646, at *2 (E.D. Tex. May
19, 2017). Southwest’s motion to exclude Rusnak’s opinions is therefore denied.
B. 	Liberty’s motion to exclude Southwest’s expert witnesses
Liberty seeks to exclude, either in whole or in part, expert testimony by
Bradley, Grudzien, Thaler, and Quinn.1 The Court considers them in turn.
1. 	Daniel Bradley and Kevin Grudzien
Southwest identifies Bradley and Grudzien as third-party accountants who
assisted Southwest in measuring, preparing, and certifying its loss for the claim
submitted to Liberty. (P. Resp. App. 5.) Southwest disclosed them as non-retained
experts in January 2022. (Id.) In its motion, Liberty argues that they should be
excluded either because they are actually retained experts for whom Southwest did
not disclose a report as required by Fed. R. Civ. P. 26(a)(2)(B) or, alternatively,
because Southwest did not provide a summary of facts and opinions as required by
Fed. R. Civ. P. 26(a)(2)(C). (D. Br. at 4.)
1 Liberty additionally identified Joseph Chairez and Andrew Ryan in its motion but,
in reply, withdraws its request to exclude them at this point. (D. Reply at 13.) Southwest
has identified Ryan as an expert on attorney’s fees, and the parties agree that the matter
should be addressed after trial. (Id.) As for Chairez, Liberty reports that the parties reached
an agreement whereby Southwest would call Chairez, if at all, only as a rebuttal witness and
that Liberty would be allowed to depose Chairez prior to any trial testimony. (Id.)
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Liberty’s assertion that Bradley and Grudzien should be treated as retained
experts is based solely on the fact that they have been compensated for their time.
(D. Br. at 4.) It points to their respective deposition testimony in which they say that
they have been paid “on this matter.” (See Dkt. No. 113-4 (“D. App.”) at 638-39,
633-34.) The cited testimony, however, does not make it clear that either man was
“retained or specially employed to provide expert testimony in the case[.]” Fed. R.
Civ. P. 26(a)(2)(B).2 Among other things, the testimony does not establish whether
“on this matter” refers to this litigation or the events underlying the lawsuit.
Southwest disclosed Bradley and Grudzien as non-retained experts and defends the
motion on the basis that they are non-retained experts, and Liberty’s citation
testimony showing that they have been paid in this matter does not prove that they
are instead retained experts.
Liberty next contends that Bradley and Grudzien should be excluded from
providing expert testimony because Southwest’s disclosures did not satisfy its
obligations for non-retained experts. (D. Br. at 4.) Under Rule 26(a)(2)(C), a party
disclosing a non-retained expert need not provide a report. It must, however, state in
its disclosure the subject matter on which the witness is expected to present expert
testimony and a summary of the facts and opinions to which the witness is expected
to testify. Fed. R. Civ. P. 26(a)(2)(C); see Galvez v. KLLM Transp. Servs., LLC, 575 F.
2 It seems undisputed that they are not Southwest employees whose duties regularly
involve giving expert testimony. See Fed. R. Civ. P. 26(a)(2)(B).
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Supp. 3d 748, 756 (N.D. Tex. 2021). “This rule is intended to ensure that an
opposing party has some notice of what an expert witness who is not retained or
specially employed will testify about.” Galvez, 575 F. Supp. 3d at 756. “The
disclosure must, at the very least, state opinions, not merely topics of testimony, and
contain . . . a summary of the facts upon which the opinions are based.” Id. (internal
quotation marks omitted).
In arguing that Southwest’s disclosures were insufficient, Liberty points only
to Southwest’s January 2022 disclosures. (See D. Br. at 4-7.) Southwest correctly
notes that Liberty’s brief is largely recycled from a motion filed in February 2022
advancing the same arguments and seeking the same relief. (See Dkt. No. 74-1 at 4-
8.) But Southwest later supplemented its disclosures to identify several specific
opinions these witnesses may provide. (P. Resp. App. 8-13.) Additionally, the
supplement states that their testimony will be based on the claim file and
communications between Southwest, its brokers, and forensic accountants and
Liberty and its representatives. (Id.) After conference on the supplemental
disclosures, Southwest’s counsel characterized Liberty’s position as accepting that
the supplemental disclosures went “a long way to addressing the issues raised” in its
February 2022 motion but that Liberty would reserve judgment whether to withdraw
its motion until after completing Bradley’s and Grudzien’s scheduled depositions.
(P. Resp. App. 27.) There is no evidence that Liberty took issue with that
characterization, either then or now. (See P. Resp. App. 26-27; see also D. Reply.)
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In consideration of Southwest’s recitation of facts in response to the instant
motion, one might expect that Liberty would address Southwest’s supplemental
disclosures and attorney conferences in its instant motion, but certainly in reply. But
Liberty wholly ignores them in its motion and only acknowledges the supplemental
disclosures in passing in reply. (See D. Reply at 8.) The Court is troubled by this.
Liberty filed a motion in October 2024 asking the Court to exclude expert testimony
from Bradley and Grudzien on the basis that Southwest’s January 2022 disclosures
were inadequate. (See Dr. Br. at 4-7 & nn. 20, 23 (relying on D. App. 62-63).) The
record reflects that, in doing so, Liberty essentially copied its February 2022 briefing
and completely ignored Southwests’ supplemental disclosures that responded—
seemingly to Liberty’s satisfaction—the arguments Liberty made in the prior brief
and re-urged in the instant motion. In reply, rather than explain why it has asked the
Court to exclude witnesses as inadequately disclosed without regard to Southwest’s
supplementations, Liberty acknowledges the supplementations only to curtly argue
that these supplemented opinions exceed what is permissible from these non-retained
experts.3
3 Liberty argues for the first time in reply that Bradley’s and Grudzien’s
supplemented disclosures go beyond opinions they formed while involved in the matters
underlying this case. The Court generally does not consider new arguments raised in a
reply. Baker v. Aetna Life Ins. Co., 228 F. Supp. 3d 764, 770 n.7 (N.D. Tex. 2017) (“[T]he
court will not consider an argument raised for the first time in a reply brief.” (internal
quotation marks omitted)). The supplemental disclosure having been made more than two
years earlier and having deposed both men, Liberty was equipped to argue in its opening
brief that the opinions exceeded those formed while performing work for Southwest. It did
not do so, and it waived the argument. See Robles v. Eminent Med. Ctr., LLC, 619 F. Supp. 3d
609, 626 (N.D. Tex. 2022) (“Arguments raised for the first time in a reply brief are generally
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This is not a case in which counsel made arguments in the October 2024
motion without awareness of the supplementation and conferences in February 2024,
as the same attorney was both a participant in the 2022 conferences and signed
Liberty’s instant motion and brief. Renewing the February 2022 arguments in
October 2024 in conscious disregard of Southwest’s supplemental disclosures and
attorney conferences is seemingly inconsistent with counsel’s certifications made by
operation of Fed. R. Civ. P. 11(b)(2) and (3).
By ignoring the supplemented disclosures Southwest provided for non-
retained experts Bradley and Gruzdien, Liberty has not shown that the disclosures
are inadequate. Therefore, its request to have these witnesses precluded from
providing expert testimony as non-retained experts is denied.
2. 	Gregory Thaler
Liberty moves to exclude portions of his opinion testimony on the basis that
his proposed testimony is merely a conduit for inadmissible hearsay and beyond his
expertise as an accountant. (See D. Br. at 12-20.)
“While experts are allowed to rely on hearsay in forming their opinions, ‘their
testimony is not a vehicle by which evidence that is otherwise inadmissible may be
introduced.’” Balfour Beatty Rail, Inc. v. Kansas City S. Ry. Co., 173 F. Supp. 3d 363,
413 (N.D. Tex. 2016) (quoting Bianco v. Globus Med., Inc., 30 F. Supp. 3d 565, 570
waived, as the responding party is deprived of the opportunity to respond to the new
argument.” (internal quotation marks omitted)).
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(E.D. Tex. 2014)); see also Petty v. Venable, Baetjer, Howard & Civiletti, LLP, No.
CIV.A.3:02-CV-1449-D, 2004 WL 1629774, at *8 (N.D. Tex. July 20, 2004) (“Rule
703 . . . is not an open door to all inadmissible evidence disguised as expert opinion.
Although experts are sometimes allowed to refer to hearsay evidence as a basis for
their testimony, such hearsay must be the type of evidence reasonably relied upon by
experts in the particular field in forming opinions or inferences on the subject.”
(quoting United States v. Scrima, 819 F.2d 996, 1002 (11th Cir. 1987))).
Liberty contends that Thaler’s report is simply a “mouthpiece” through which
Southwest seeks to introduce hearsay testimony. (See D. Br. at 13.) It refers
generally to Thaler as providing “summaries of Southwest’s speculative beliefs” and
“regurgitat[ing]” conclusions and opinions supplied to him by Southwest. (Id. at 13-
14.) Liberty does not point to any specific instance in which it believes Thaler’s
proposed testimony is used as a mere conduit for inadmissible hearsay, and the
Court’s review of his report suggests otherwise. If at trial Southwest attempts to
adduce inadmissible hearsay from Thaler, it may at that time seek to exclude the
testimony or request an appropriate jury instruction from the Court. Liberty has not
shown that Thaler’s testimony should be excluded pre-trial on this basis.
Liberty next asserts that Thaler’s testimony should be excluded because he
does not state that an expert in his field would reasonably rely on the inadmissible
information upon which he relies. (D. Br. at 14.) Thaler states in a declaration,
however, that in his 30 years as a consultant or expert witness, he has become
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familiar with the types of information that others like him rely on when forming
opinions. (P. App. 118.) He has further explained in response to Liberty’s motion
that the categories of information he relied on are the types commonly relied on by
experts in his field. (P. App. 118-20.) Thaler’s testimony is not subject to pretrial
exclusion on this basis.
Finally, Liberty asserts that Thaler’s proposed testimony should be excluded
because it goes beyond the scope of his expertise as an accountant. (D. Br. at 14-20.)
It identifies 27 parts of Thaler’s report by paragraph (or footnote) number and asserts
that opinions expressed in these portions should be excluded “because the facts and
data he relies on and the conclusions in support of his opinions are not sufficiently
developed or explained.” (D. Br. at 17.) Liberty contends that these portions of
Thaler’s report are simply his ipse dixit assertions. (Id. at 18.) Liberty’s non-specific
objection is overruled, and it may challenge these opinions in cross-examination. See
America Can!, 597 F. Supp. 3d at 1044.
3. 	Michael Quinn
Liberty moves the Court to exclude portions of Quinn’s report, stating
generally that his opinions are not based on facts or data but are instead based on
speculation and conjecture. (D. Br. at 20-21.) It contends that Quinn’s report from
pages 13 to 44 “goes through a litany of what he views as the law applying to insurer
bad faith and discussing unrelated hypotheticals” and asserts generally that his
conclusions lack any foundation. (Id. at 21.) Liberty identifies no specific opinion
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rendered by Quinn that should be excluded. After considering the parties’ arguments
and reviewing Quinn’s report, the Court concludes that Liberty’s motion should be
denied in this respect.
IV. CONCLUSION
Southwest’s Motion to Partially Exclude Opinions of Steven Plitt (Dkt. No.
109) and Motion to Partially Exclude Opinions of Shannon Rusnak (Dkt. No. 108)
are DENIED, and Liberty’s Motion to Exclude Plaintiff’s Testifying Experts (Dkt.
No. 113-2) is DENIED.
SO ORDERED on December 2, 2024.
BRIAN McKAY
UNITED STATES MAGISTRATE JUDGE
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