Practitioner articles on insurance expert bias, published in Advocate Magazine
Advocate Magazine — July 2024
The Ninth Circuit's 2016 decision in Demer v. IBM Corp. LTD Plan provided the first comprehensive analytical framework for evaluating expert bias in insurance claims — a framework of standards, factors, and presumptions that had gone largely unnoticed because it arose under ERISA. This article argued that the Demer paradigm applies equally to all insurance claims: non-ERISA disability, property, casualty, health, and commercial lines. It introduced the inference-of-bias standard, the four-factor bias calculus (financial benefits, patterns and practices, unreliable methodology, and the insurer's reasonable measures), and the rebuttable presumption that shifts the burden to the insurer once threshold evidence of bias is produced. The article also analyzed Bagramyan v. Gov't Employees Ins. Co. (Cal.Ct.App. 2023) — the first California appellate decision to recognize "inference of bias" as the operative standard — and identified where the court's reasoning fell short.
Advocate Magazine — September 2017 · Co-authored with Evangeline Fisher Grossman
The genuine-dispute doctrine, extended to factual disputes by Fraley v. Allstate Ins. Co. (2000), had by 2017 produced a near-absolute defense for insurers relying on retained experts. Chateau Chamberay Homeowners Assn. v. Associated Int'l Ins. Co. (2001) carved out exceptions for biased or dishonestly selected experts — but those exceptions had been consistently ignored by courts and underdeveloped by practitioners. This article diagnosed the failure, identified three reasons insureds consistently lost on bias claims, argued that California's existing "inference of bias" and "substantial relationship" standards (as applied to arbitrators, appraisers, and judges) applied equally to insurer-retained claim experts, and documented the discovery pathway to proving bias through other insureds' claim files.
What Has Evolved
The 2017 article identified the problem. The 2024 article named the framework. Since then, the analysis has continued to develop along two fronts.
The first is the Demer+ extension. The fourth factor in the Demer paradigm — the insurer's reasonable measures to safeguard expert impartiality and reliability — is expanding from a retrospective inquiry into an affirmative, structural obligation. The question is not only whether the insurer's expert was neutral in practice, but whether the insurer's selection, vetting, and oversight process was structurally designed to produce impartial results. That shift reorients the entire theory of liability and is the least-developed area in the current case law.
The second is AI. Automated claims-decision systems are the structural successors to biased human experts. They produce coverage outcomes at scale, without reviewable methodology or cross-examination. The reasonable measures duty applies to AI-driven claims decisions as it applies to human expert retention — and the California legislation now pending before the Assembly Insurance Committee is designed to delete the records that would prove AI-driven bias before litigation can begin.
The 14-chapter e-treatise — drawing from more than 1,000 reported decisions across all 51 jurisdictions — systematizes the full body of doctrine. It is in final preparation and will be available to paid subscribers of Expert Bias Report: Insurance Claims.