Connecticut Judge Raises Concerns About Narrow Expert Testimony Scope

Judge John B. Farley raised “serious doubts” about expert testimony opining not on a proper interpretation of New York law, but what a reasonable attorney would believe the law was. PHL Variable Insurance Company, et al. v. McCarter & English, LLP, et al., No.: X07-HHD-CV16-6070473-S (Super. Ct. June 5, 2026). The case concerns McCarter’s failed 2011 promise to Phoenix Insurance Company to secure an obligation from Oyster Bay, New York to pay Phoenix’s loans in the event the borrower defaults. McCarter created an agreement with Oyster Bay to pay roughly $20 million in loans for a golf course and beach construction project despite New York law not allowing direct guarantees from towns. When the borrower defaulted in 2015, Oyster Bay declined to pay and stated it was under no obligation to do so. Both parties procured expert testimony to establish whether or not McCarter violated a standard of care when drafting the agreement.

Judge Farley previously barred Phoenix’s expert witness from applying New York real estate law, claiming “the interpretation of New York law is his job and should be addressed in post trial briefs.” Brian Steele, McCarter Trial Judge Has ‘Serious Doubts’ About NY Expert, Law360 (July 8, 2026). Phoenix’s witness continued to testify on the standard of care while avoiding what requirements New York law imposes on attorneys. Following Phoenix’s testimony, McCarter retained Jeffrey F. Swiatek to provide analyze the closing documents for their loans, where he concluded other New York attorneys would have believed the documents were sufficient enough to close the deal. The Judge allowed Swiatek’s testimony as long as he did not claim to interpret New York law. He explained this was “a fine distinction I haven’t heard drawn before,” leading to his doubts about the testimony. Id. However, he further clarified that any issues with the testomony may be addressed through objections.

Phoenix challenged this testimony by citing Swiatek’s deposition where he claimed he was not qualified to speak on the standard of care for McCarter’s transactions---precisely the subject of his testimony. In response, Judge Farley said “I really do wish that there had been a motion in limine” and that Phoenix raised its issues with the expert witness earlier, pointing to June 29, 2026 when Swiatek was disclosed as a witness three months prior.

Judge Farley’s handling demonstrates the narrow and unsettled line between this distinction. His “serious doubts” reflect the risk that attorney testimony may inevitably invite the expert to opine on New York law. The dispute reinforces the duty of attorneys to raise contentions with expert witnesses prior to the start of trial to avoid bloating the proceedings with repeated objections to the permissible scope of their testimony.