Gay v. Stonebridge Life Ins. Co.

• Decision Date: 26 October 2011
• Docket Number: No. 10–1559.,10–1559.
• Citation: 80 Fed.R.Serv.3d 1372,660 F.3d 58
• Parties: Frank A. GAY, as Executor of the Estate of Anita Gay, also known as Anita M. Gay, Plaintiff, Appellant, v. STONEBRIDGE LIFE INSURANCE COMPANY, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

660 F.3d 58

80 Fed.R.Serv.3d 1372

Frank A. GAY, as Executor of the Estate of Anita Gay, also known as Anita M. Gay, Plaintiff, Appellant,

v.STONEBRIDGE LIFE INSURANCE COMPANY, Defendant, Appellee.

No. 10–1559.

United States Court of Appeals, First Circuit.

Heard Nov. 1, 2010.Decided Oct. 26, 2011.

Kevin Hensley, with whom Warren, Hensley & Bowen LLP was on brief, for appellant.

Robert P. La Hait, with whom the McCormack Firm, LLC was on brief, for appellee.

Before LYNCH, Chief Judge, HOWARD, Circuit Judge, and DiCLERICO, ^* District Judge.HOWARD, Circuit Judge.

Plaintiff–Appellant Frank A. Gay (“Gay”) appeals from the denial of a new trial in this insurance coverage case. He argues that the district court erred when it permitted a defense expert witness to present testimony claimed to be beyond the scope of his expert report. There was a verdict for defendant, Stonebridge Life Insurance Company (“Stonebridge”). Gay's motion was denied by the district court, and on appeal he presents the same argument. After review, we affirm.

I. Background

Gay is the brother of the late Anita Gay (“Anita”) and executor of her estate. Her death occurred during a trip she took to a casino in Lincoln, Rhode Island. While at the casino, Anita fell. When medical personnel arrived to treat her, she was unconscious and appeared to have suffered a head injury from the fall. She was transported to a local hospital, but when her condition deteriorated she was transferred to Rhode Island Hospital in Providence. She died the next day.

The hospital records listed Anita's death as an accident, and stated that she died as the result of a nonsurvivable closed head injury that caused extensive bleeding in her brain. Her body was released to the Rhode Island Office of State Medical Examiners to determine a more precise cause of death. An autopsy was performed by George Lauro, M.D., a forensic pathologist with that office. The limited autopsy report that he prepared recorded the cause of death as “fractured skull with subdural and subarachnoid hemorrhage following acute cerebral hemorrhage.” ¹ The death certificate prepared by Dr. Lauro reports the same cause of death. The autopsy report stated that Anita's manner of death was an “accident,” from having “collapsed at race track.”

Gay made a timely demand for payment of benefits under three insurance policies issued to Anita by Stonebridge. Gay sought to recover the amount due under the policies, plus payment for one day of hospitalization, for a total of $150,500. Each of the polices provided for payment only in the event of “accidental death which was a direct and independent cause of death.” In the event of accidental death, the aggregate value of the policies totaled $150,000, plus an additional $500 for each day of hospitalization. Stonebridge denied the benefit based on its conclusion that Anita's death was not “accidental” within the meaning of the policies. It determined that the occurrence of a stroke—which likely caused the fall—pushed her claim outside the accidental death coverage of the policies.

Gay filed suit for breach of contract, arguing that Anita's death was accidental as documented by the hospital records and autopsy reports. Stonebridge countered that those records in fact demonstrated that Anita did not die from an accident, but that her death was caused primarily by the stroke that she suffered. Stonebridge indicated that it intended to call an expert witness, Dr. Paul Rizzoli, to testify that her death was attributable to the stroke, and timely disclosed Dr. Rizzoli's report. See Fed.R.Civ.P. 26(a)(2)(B). In relevant part, Dr. Rizzoli opined that:

It is difficult to be clear based on the autopsy description, however, the amount of bleeding described seems out of proportion to that which could be expected on the basis of trauma alone.... Cerebral hemorrhage can range from unapparent to fatal in its manifestations. Thus, it is difficult to separate out which aspects of this situation related to which issue. However, that cerebral hemorrhage presented in this case seems certain.... [I]t indeed is correct to conclude that a preceding [stroke] did in fact lead to unconsciousness, that as a result, the patient fell sustaining a serious head injury, and that the [stroke] was a contributing cause of death.

(Emphasis added.)

The central issue in dispute was whether the circumstances of Anita's death precluded coverage under the policies. The insurance policies provided for coverage if the death was caused by an accident “directly and independently of all other causes,” and denied coverage if the death was caused by an injury “due to disease, bodily or mental infirmity, or medical or surgical treatment of these.” ² At the final pretrial hearing, the court ruled that this policy language required Gay to prove that the skull fracture resulting from the fall was “the direct cause of [Anita's] death independent of any preceding medical condition; that is, that the fall, as opposed to the stroke, was the ‘dominant cause’ of her death.” ³ Because the evidence indicated that more than one factor contributed to Anita's death—the stroke and the skull fracture—Gay bore the burden of separating out the consequential causes from the inconsequential causes of her death.

The court explained that if Gay proved the accident was the prime or dominant cause of death—even if an illness or preexisting disease such as a stroke had contributed to the accident—he would be entitled to recover under the policies. That ruling is not the subject of this appeal.

At trial, Gay argued that the head injury caused by Anita's fall was the “dominant cause” of death. In support of this claim, he presented the death certificate, the deposition transcript of the coroner, Dr. Lauro, and the testimony of a neurologist, Dr. Matthew Gold. Each of these sources provided evidence that the skull fracture was the cause of Anita's death.

In response, Stonebridge's expert, Dr. Rizzoli, opined that the skull fracture contributed to Anita's death, but was not “a major cause of death.” He elaborated, testifying that the “skull fracture as described doesn't seem like a mortal wound.” Gay moved to strike this testimony because Dr. Rizzoli had only been asked whether the skull fracture had contributed to causing Anita's death, not whether it had been a major cause of her death, but the motion was denied. On cross-examination, Dr. Rizzoli conceded that his report did not expressly indicate that the skull fracture was not a mortal wound, or that the stroke was a major, as opposed to a contributing, cause of Anita's death. Gay renewed his motion to strike Dr. Rizzoli's testimony, which again was denied.

At the end of the trial, the jury returned a verdict in favor of Stonebridge. Gay moved for a new trial pursuant to Fed.R.Civ.P. 59(a), arguing that Stonebridge had failed to adequately disclose Dr. Rizzoli's opinion prior to trial as required by Fed.R.Civ.P. 26(a)(2)(B), which rendered Dr. Rizzoli's conclusion that the skull fracture was not “a major cause” of death inadmissable under Fed.R.Civ.P. 37(c)(1). The district court denied the motion, finding that the conclusion had been adequately presented in the report and that there was neither error nor prejudice resulting from the admission of Dr. Rizzoli's testimony.

Gay argues now that the testimony was erroneously admitted and that, but for this error, he may have prevailed in what he describes as “an extremely close case.” He asserts that he would have presented his case differently had he known that Stonebridge intended to introduce live expert witness testimony that the skull fracture was not the dominant cause of Anita's death. In particular, he contends that rather than simply rebutting Dr. Rizzoli's testimony by reading Dr. Lauro's deposition transcript, he would have called Dr. Lauro as a witness to supplement Dr. Gold's testimony.

II. Discussion

We review the admission of Dr. Rizzoli's testimony for abuse of discretion.⁴ Peña–Crespo v. Puerto Rico, 408 F.3d 10, 14 (1st Cir.2005). If we determine that the testimony was erroneously admitted, we then review that admission for harmless error. Rubert–Torres v. Hosp. San Pablo, Inc., 205 F.3d 472, 480 (1st Cir.2000). “Our harmlessness inquiry is whether exclusion or admission of the evidence affected plaintiff's substantial rights. The central question is whether this court can say with fair assurance that the judgment was not substantially swayed by the error.” Id. (quoting Lynch v. City of Boston, 180 F.3d 1, 15 (1st Cir.1999)).

A. Admission of Dr. Rizzoli's Testimony

A party seeking to introduce expert testimony at trial must disclose to the opposing party a written report that includes “a complete statement of all opinions the witness will express and the basis and reasons for them.” Fed.R.Civ.P. 26(a)(2)(B). Failure to comply with that rule may preclude the party from, “us[ing] that witness or relevant expert information to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless.” Esposito v. Home Depot U.S.A., Inc., 590 F.3d 72, 77 (1st Cir.2009) (describing how violations of Fed.R.Civ.P. 26(a)(2) may implicate the sanctions of Fed.R.Civ.P. 37(c)(1)) (quoting Fed.R.Civ.P. 37(c)(1)) (internal quotation marks omitted).

Though the baseline sanction for failure to comply with Rule 26 is preclusion, preclusion “is not a strictly mechanical exercise.” Id. (quoting Santiago–Diaz v. Laboratorio Clínico Y De Referencia Del Este, 456 F.3d 272, 276 (1st Cir.2006)). The district court has the discretion to choose a lesser sanction. Id. at 77–78 (citing Laplace–Bayard v. Batlle, 295 F.3d 157 (1st Cir.2002) to explain the district court's “broad discretion in meting out ... sanctions for Rule 26 violations,” id. at 162). For example, allowance of a continuance to permit greater preparation for cross-examination of an expert may be appropriate. Newell Puerto...