January 24, 2018
Recently a life insurance company filed an interpleader action to resolve which of the defendants was entitled to the proceeds of an insurance policy it issued on the life of the decedent (the insured)—his ex-wife or his widow.
The ex-wife was the named beneficiary, and the insured had transferred ownership of the policy to her about a year before his death.
U.S. District Judge William W. Caldwell was asked by the ex-wife to exclude the report of the widow’s expert, who was a doctor and an attorney.
The expert said that the insured’s counsel specifically asked whether he suffered from weakened intellect as defined by the Pennsylvania courts when he transferred the life insurance policy to his former wife.
After a review of the insured's medical records, deposition testimony, and after a one-hour interview with the insured, the expert opined that he suffered from a weakened intellect and that the ex-wife was in a confidential relationship with him.
In her report, the expert stated that "[a]ll of my opinions expressed in this report are given within a reasonable degree of medical certainty."
The ex-wife wanted to exclude the expert's opinion that the insured suffered from a weakened intellect because weakened intellect is not part of the analysis for challenging an inter vivos gift, as opposed to a testamentary one. Thus, the expert opinion was irrelevant.
Judge Caldwell wrote that in a will contest, when the proponent of the will shows that it’s been validly executed, the burden shifts to the challenger asserting undue influence to prove "that there was a confidential relationship, that the person enjoying such relationship received the bulk of the estate, and that the decedent's intellect was weakened."
In contrast, the ex-wife argued that the case involved an inter vivos gift, the insured's transfer of the policy to her during his lifetime.
When an inter vivos gift is challenged, weakened intellect is not part of the analysis. Instead, to rebut the presumption that the gift is valid, the challenger can show that a confidential relationship between the donor and the donee existed at the time of the gift.
In opposition, the widow maintained that "weakened intellect" is a concept that applies to inter vivos gifts.
Judge Caldwell concluded that the motion in limine should be granted as to the expert's opinion on the insured's weakened intellect as such a concept is not part of the framework the court must apply to the transfer of the policy.
The ex-wife also argued that the expert's opinion in which the ex-wife had a confidential relationship with the insured should also be excluded.
The expert opined that "it can be argued" that the ex-wife had a confidential relationship with the insured.
The ex-wife argued that Pennsylvania law requires that an expert must testify that her opinion is made within a reasonable degree of certainty and expert testimony that "it can be argued" that there was a confidential relationship isn’t sufficient.
The widow responded that her expert did supply the requisite testimony when she affirmed in her report that all of her opinions were given within a reasonable degree of medical certainty.
Whether an expert gave her opinion within a reasonable degree of medical certainty is determined from her testimony in its entirety, the judge explained.
An expert can use less definite language provided she at some time during her testimony expresses her opinion with reasonable certainty. An opinion couched in terms of possibilities or probabilities isn’t enough.
Here, Judge Caldwell held that the expert didn’t express herself with the requisite certainty about the confidential relationship. Saying that "it can be argued" that there was a confidential relationship will not be sufficient.
Nor was the widow assisted by the expert's statement elsewhere in the report that all her opinions were given within a reasonable degree of medical certainty. At best, as the ex-wife argued, this was an assertion to a reasonable degree of certainty that it could be argued that there was a confidential relationship.
This didn’t do it.
The ex-wife’s motion to exclude the expert's opinion that the insured suffered from a weakened intellect and that she had a confidential relationship with him was granted.