Liberty Mutual Insurance Company v. Day to Day Imports Inc., et al.
- Analisa Torres
- 1:22-cv-02181
- U.S. District Court · Southern District of New York
- 5
In Liberty Mutual v. Day to Day Imports, Judge Tarnofsky granted in part and denied in part reconsideration of an order excluding defense expert Barry Zalma’s testimony.
The defendants may present three specified opinions from Barry Zalma concerning insurance-industry practices, while his other challenged opinions remain excluded; Liberty Mutual is affected because those opinions may be offered against its claims-handling practices.
What happened
Liberty Mutual Insurance Company v. Day to Day Imports Inc. concerns whether parts of defense expert Barry Zalma’s reports and testimony should remain available after the court excluded his opinions. The defendants asked the court to reconsider that earlier exclusion order.
The court kept out opinions based on Zalma’s interpretations of disputed insurance-policy terms, his assessment of another expert’s qualifications, and his lengthy retelling of the evidence. But it concluded that some opinions about insurance-industry practices were permissible if they did not claim that the practices were legally required.
Judge Tarnofsky granted in part and denied in part the reconsideration motion. Zalma may testify about three specified industry-practice opinions concerning staffing and claim investigations, including the use of an insurance adjuster instead of a marine surveyor; the remaining challenged opinions stayed excluded.
The detailed version
- Liberty Mutual Insurance Company v. Day to Day Imports Inc., et al. · No. 1:22-cv-02181
- Analisa Torres
- Sept. 3, 2025
Background
The court had previously granted Liberty Mutual Insurance Company’s motion under Daubert v. Merrell Dow Pharmaceuticals, Inc. to exclude the reports and testimony of the defendants’ expert, Barry Zalma. The earlier ruling did not exclude Zalma because he lacked qualifications or because his methods were unreliable. Instead, it excluded his opinions as irrelevant or improper because they interpreted New York and California law, summarized facts that a lay witness could present, and addressed matters reserved for the judge or factfinders. The court concluded that, after removing the impermissible portions, there was nothing left to salvage.
The defendants moved for reconsideration, arguing that portions of Zalma’s report and rebuttal report were admissible. The court required the defendants to identify the portions they believed should remain. The defendants identified five opinions in the main report and two opinions in the rebuttal report.
Opinions in the Main Report
The court rejected Zalma’s description of marine surveyors’ roles because it was largely taken from the Marine Insights website, and the record did not show that the statements reflected his personal expertise. The court also rejected his lengthy chronology of the investigation because it merely rehashed evidence and presented a narrative that a lay juror could construct.
The court held that three categories of opinions were not objectionable if statements claiming that the practices were legally required were removed:
- The insurance industry’s custom and practice of maintaining enough staff to investigate claims, and Zalma’s opinion that Liberty Mutual failed to do so or to hire an insurance adjuster to investigate the defendants’ claims.
- The insurance industry’s custom and practice of conducting investigations that include witness interviews, examination of physical evidence, document review, necessary research, and completion within a specified timeframe.
- Zalma’s opinion that, based on industry custom and practice, Liberty Mutual should have hired an insurance adjuster rather than a marine surveyor to investigate the claimed losses.
The court did not allow Zalma’s broader opinion that Liberty Mutual’s claims handling was among the most inadequate, incomplete, and unprofessional he had seen. Two of the premises supporting that opinion depended on his interpretation of disputed policy terms—whether losses involving goods outside the warehouse were covered and whether coverage for goods inside the warehouse was limited to visibly damaged goods. The court also held that an expert could not use those opinions to tell the jury how to resolve disputed coverage questions.
Opinions in the Rebuttal Report
The court rejected Zalma’s opinion that Liberty Mutual’s expert, Peter Curzio, lacked experience with fire-insurance claims. Whether another expert is qualified to testify is a decision for the court, not a proper subject for testimony by a competing expert.
The court also rejected Zalma’s opinion that Curzio ignored Liberty Mutual’s allegedly deficient investigation and should have concluded that Liberty Mutual prematurely denied claims involving goods outside the warehouse. The court viewed that opinion as an improper attempt to interpret disputed insurance-policy terms.
Ruling
The court granted in part the defendants’ motion for reconsideration. Zalma may testify about the three industry-practice opinions identified above. The court otherwise denied in part the motion, leaving the remaining challenged opinions excluded. The clerk was asked to terminate the motion on the docket.
The opinion is classified as a procedural order because it ruled on reconsideration of an expert-evidence exclusion rather than deciding the underlying insurance dispute.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.