Practical Tips · The Demer Factors · Factor Four · July 2026
Three factors ask what the insurer’s expert did. The fourth asks what the insurer built before your claim ever existed — and it is the factor almost everyone, including experienced counsel, argues wrong.
The first three Demer factors look backward at one expert’s conduct on one claim: the money, the pattern, the method. The fourth factor asks a deceptively simple question instead — what reasonable measures did the insurer take to ensure that its expert was neutral and reliable? — and it is not a question about the insurer’s mistakes in your claim. It is a question about what the insurer was supposed to be doing structurally and continuously, before your claim ever arrived. Claimants who pour everything into the insurer’s errors of commission routinely leave the omission case — often the stronger one — sitting on the table.
The foundation is the U.S. Supreme Court’s Metropolitan Life Insurance Co. v. Glenn: when the same company both decides claims and pays them, the structural conflict is a factor in every reviewing court’s analysis — but the Court attached a dial to it. The conflict weighs heavily where the insurer has a history of biased administration, and can shrink toward “the vanishing point” where the insurer has “taken active steps to reduce potential bias and to promote accuracy.” The Court’s own examples — walling decision-makers off from the finance function, and management checks that penalize inaccuracy no matter which side it favors — are the whole factor in miniature: structural, continuous, and outcome-blind. Things an insurer builds and maintains, not things it says.
Eight years later, the Ninth Circuit’s Demer v. IBM Corp. LTD Plan — the seminal case of this series — held that the structural conflict and the expert’s own financial conflict are different problems: an insurer can wall off its claims department perfectly and still rely on an outside reviewer who earns six figures a year from the industry. Curing the first conflict does nothing to cure the second, and outside reviewers are not automatically neutral. So the insurer’s playbook adapted. If measures are what courts want, measures are what courts will be shown — on paper. The anchor case of this module shows that playbook at full strength: a self-authored “Principles” document, never seen by the claimant until it was too late to test, credited by the court as proof of fairness rather than a claim to be proven. That story is the module’s case study.
Three things make the fourth factor more consequential than its thin case law suggests. It is the insurer’s factor to lose — the measures either exist or they don’t, and the evidence sits entirely in the insurer’s own files. It is claimant-executable — courts have allowed discovery into an insurer’s bias-reduction steps, and where claimants actually test the paper, unrebutted recitals stop winning. And it reduces to a single practical test: does the insurer have, and can it produce, the records reflecting its evaluation of the expert’s neutrality and reliability? An insurer that has actually built what Glenn and Demer describe has this information on hand, because collecting and monitoring it is what reasonable measures means. An insurer that objects the request is too burdensome has, by that objection, admitted it does not maintain what reasonable measures requires.
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The case study behind this factor: The Document the Claimant Never Saw Coming. The moves distilled to a field card: The Reasonable-Measures Checklist. This page completes the four-factor arc that begins with The Standard Comes Before the Factors, runs through The Two Metrics That Trigger the Burden-Shift and Procedural Irregularities, and continues into Who Has to Prove What? The full paradigm is set out in Demer’s Paradigm for Assessing Biased Insurance Experts (Advocate Magazine, 2024).
Distilled from the project’s own doctrinal synthesis of the reasonable-measures case law (Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105 (2008); Demer v. IBM Corp. LTD Plan, 835 F.3d 893 (9th Cir. 2016); Fessenden v. Reliance Standard Life Ins. Co., No. 3:15-CV-370 (N.D. Ind.)) and the discovery decisions permitting claimants to test an insurer’s claimed safeguards. Case law is cited for its principles. Educational and informational only; not legal advice.