WILLIAM JEFFREY BURNETT V. CONSECO LIFE INSURANCE COMPANY

CourtDistrict Court, S.D. Indiana
DecidedMarch 26, 2025
Docket1:18-cv-00200
StatusUnknown

This text of WILLIAM JEFFREY BURNETT V. CONSECO LIFE INSURANCE COMPANY (WILLIAM JEFFREY BURNETT V. CONSECO LIFE INSURANCE COMPANY) is published on Counsel Stack Legal Research, covering District Court, S.D. Indiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
WILLIAM JEFFREY BURNETT V. CONSECO LIFE INSURANCE COMPANY, (S.D. Ind. 2025).

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

WILLIAM JEFFREY BURNETT, ) JOE H CAMP, ) ) Plaintiffs, ) ) v. ) No. 1:18-cv-00200-JPH-KMB ) CNO FINANCIAL GROUP, INC., ) CNO SERVICES LLC, ) ) Defendants. )

SEALED ORDER ON MOTIONS TO EXCLUDE EXPERT TESTIMONY Plaintiffs William Burnett and Joe Camp have filed a motion to exclude portions of expert testimony from Timothy Pfeifer and Mary Jo Hudson. Dkt. 475. CNO Financial Group and CNO Services ("CNO Defendants") have filed motions to exclude portions of expert testimony from Mark Browne and Robert Muriel. Dkt. 467; dkt. 468. For the reasons below, Plaintiffs' motion to exclude is GRANTED, dkt. [475]; and the CNO Defendants' motions to exclude are GRANTED in part and DENIED in part as to Mark Browne, dkt. [467], and GRANTED as to Robert Muriel, dkt. [468]. I. Facts and Background William Burnett and Joe Camp are former holders of certain "LifeTrend" life insurance policies. See dkt. 449-1; dkt. 449-2. They brought this case alleging that Conseco Life Insurance Company1 breached their Policies by

1 The Court has approved a class action settlement and entered final judgment as to Conseco Life Insurance Company. Dkt. 237; dkt. 251. announcing and implementing changes in the calculation of Policy premiums and expense charges, which caused thousands of policyholders to surrender their Policies. Dkt. 108-1. Plaintiffs also allege that the CNO Defendants are

liable under an alter ego theory. Id. at 76. This case is set for bifurcated trials: a jury trial on liability for breach of contract to begin June 16, 2025, and a bench trial on alter ego liability to begin August 25, 2025. Dkt. 514. The CNO Defendants plan to call as witnesses Timothy Pfeifer as an expert in life-insurance policy development and Mary Jo Hudson as an expert in insurance regulation. Plaintiffs plan to call Mark Browne as an expert in insurance, risk management, and actuarial science, and Robert Muriel as an expert in accounting and corporate governance.

Plaintiffs have filed a motion to exclude portions of expert testimony from Mr. Pfeifer and Ms. Hudson. Dkt. 475. The CNO Defendants have filed motions to exclude portions of expert testimony from Dr. Browne and Mr. Muriel. Dkt. 467; dkt. 468. II. Applicable Law To testify as an expert, a witness must be qualified "by knowledge, skill, experience, training, or education." Fed. R. Evid. 702; Hall v. Flannery, 840 F.3d 922, 926 (7th Cir. 2016). General qualifications are not enough; a foundation for answering specific questions is required. Hall, 840 F.3d at 926. A witness qualified with respect to the specific question being asked may give opinion testimony "if the proponent demonstrates to the court that it is more likely than not that": a) The expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; b) The testimony is based on sufficient facts or data; c) The testimony is the product of reliable principles and methods; and d) The expert's opinion reflects a reliable application of the principles and methods to the facts of the case.

Fed. R. Evid. 702; Hall, 840 F.3d at 926. In short, proponents of expert evidence must "demonstrate by a preponderance of the evidence that their [experts'] opinions are reliable." Fed. R. Evid. 702 comm. note to 2023 am. These requirements are evaluated under the two-step Daubert framework. Robinson v. Davol Inc., 913 F.3d 690, 695 (7th Cir. 2019) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593–94 (1993)). For the first step, the proponent must "establish that the proposed witness would testify to valid scientific, technical, or other specialized knowledge." Id. If step one is satisfied, the proponent "must then show that the expert testimony will assist the trier of fact." Id. For this step, the Court "evaluates whether the proposed . . . testimony fits the issue to which the expert is testifying." Id. III. Analysis A. Timothy Pfeifer and Mary Jo Hudson The CNO Defendants plan to call Mr. Pfeifer as an expert in life- insurance policy development, see dkt. 477-1 at 5 (Pfeifer report), and Ms. Hudson as an expert in insurance regulation, see dkt. 477-3 at 4–5 (Hudson report). Plaintiffs do not challenge either witness's qualifications. See dkt. 479. Instead, they argue that Mr. Pfeifer and Ms. Hudson should be prohibited from opining on legal conclusions about the meaning and legal effects of Policy terms. Id. at 1–7. The CNO Defendants respond that Mr. Pfeifer's and Ms. Hudson's opinions are not legal conclusions but "opinions regarding the

regulatory and actuarial bases for the [Policies] and the administrative changes at issue in this litigation." Dkt. 490 at 2. "It is the role of the judge, not an expert witness, to instruct the jury on the applicable principles of law, and it is the role of the jury to apply those principles of law to the facts in evidence." Jiminez v. City of Chicago, 732 F.3d 710, 721 (7th Cir. 2013). "As a general rule, accordingly, an expert may not offer legal opinions." Id. That includes opinions "about the meaning of . . . contracts" and their legal implications and effects. RLJCS Enters., Inc. v. Prof'l

Benefit Tr. Multiple Emp'r Welfare Benefit Plan & Tr., 487 F.3d 494, 498 (7th Cir. 2007). Plaintiffs identify fourteen opinions as examples from Mr. Pfeifer and Ms. Hudson that improperly opine about the Policies' meaning and the permissibility of Conseco Life Insurance Company's actions under the Policies. Dkt. 479 at 4–7. For example: • In my actuarial reading of the policies, there is no provision in the contracts or actuarial memoranda which indicates or suggests that once the [Optional Premium Payment] Provision is exercised, that the contract is paid-up or that a lower premium can be permanently paid.

• The actions taken by [Conseco Life] were consistent with actions permitted under the contract, in my opinion as an experienced actuary. • The contract language under the LifeTrend contracts allowed [Conseco Life] substantial flexibility to manage its [cost-of- insurance] deductions.

• In my opinion, Plaintiffs' theory grossly mischaracterizes the terms of the Policies by suggesting that election of OPP status entitled them to permanently stop paying premiums under their Policies.

Id. (quoting Pfeifer's and Hudson's reports). Whenever these opinions offer legal conclusions about what the Policies mean and their legal effects on Conseco Life and the Policyholders, they are inadmissible. See RLJCS Enters., Inc., 487 F.3d at 498; Benefit Res. Grp., Inc. v. Westfield Ins. Co., No. 2:11-cv- 64, 2013 WL 12199941 at *3 (N.D. Ind. Jan. 7, 2013) ("An expert is not permitted to provide expert testimony about the meaning of contracts, legal implications of conduct, or the scope of the insurer's duty under an insurance policy."); Jakobovits v. PHL Variable Ins. Co., 645 F. Supp. 3d 95, 117–18 (E.D.N.Y. 2022) (excluding similar opinions from Mr. Pfeifer as "improper legal conclusion[s]").

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