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INSURERS ASK HIGH COURT FOR TOUGH STANDARDS

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WASHINGTON -- Insurers are trying to persuade the U.S. Supreme Court to apply rigorous standards in allowing expert testimony in a case that could impact Year 2000 litigation.

The American Insurance Assn. and the National Assn. of Independent Insurers late last month filed an amicus brief in the case of Kumho Tire Co. vs. Carmichael, a product liability lawsuit pending before the Supreme Court.

The brief urges the high court to apply to testimony on technical issues in Kumho the same standards for admissibility principles that the court set forth regarding testimony on scientific issues in an earlier case.

Doing so would set the stage for how testimony on technical issues in cases related to the millennium bug are handled, insurers contend.

The Washington Legal Foundation filed a similar brief with the court, pointing out that "in this day of paid experts. . .an un-checked expert can become a dangerous roadblock to the jury's search for the truth."

Insurers welcomed the Supreme Court's 1993 ruling in Daubert vs. Merrell Dow Pharmaceuticals Inc., which set tough standards for expert witness testimony on scientific theories and techniques. The court said the testimony should focus on whether the theory or technique has been tested, subjected to peer review and publication, has a known or potential error rate, and whether it is generally accepted by the relevant scientific community.

The insurers' brief urges the Supreme Court to apply those same standards to testimony on technical issues by expert witnesses in the Kumho case. Insurers hope that doing so would set a standard for how such testimony would be handled in anticipated Y2K litigation.

The establishment of such standards "has an obvious application to product liability cases," said Michael Lovendusky, assistant general counsel at the American Insurance Assn. in Washington. "But the thing that piqued our interest are the Year 2000 concerns."

He explained that litigation around Year 2000 claims will involve testimony not by scientists but by engineers and software technicians.

Mr. Lovendusky said he believes most "responsible corporations are doing their due diligence" to make sure their computer systems don't experience problems when 2000 arrives. But problems will come from "areas where you think they will least likely arise," such as embedded microchips that were overlooked, he added.

Such problems are expected to lead to insurance coverage disputes and lawsuits that will call computer technicians to witness stands.

"The highest court should, in fact, extend the Daubert standards" to testimony by experts on technical issues as well as scientific ones, Mr. Lovendusky said. "There should be a bright-line test."

Kumho Tire Co. vs. Carmichael, U.S. Supreme Court, No. 97-1709.