Jamison v. Depositors Ins. Co.

• Decision Date: 05 July 2016
• Docket Number: 4:14-CV-3009
• Court: U.S. District Court — District of Nebraska
• Parties: NELLE JAMISON and JOHN PAUL JAMISON, Plaintiffs, v. DEPOSITORS INSURANCE COMPANY, Defendant.

NELLE JAMISON and JOHN PAUL JAMISON, Plaintiffs, v. DEPOSITORS INSURANCE COMPANY, Defendant.

4:14-CV-3009

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

July 5, 2016

MEMORANDUM AND ORDER

The plaintiffs in this case, Nelle and John Paul Jamison, have filed a motion in limine (filing 83) seeking to preclude the defendant, Depositors Insurance Company, from offering expert testimony at trial. Depositors has responded with its own motion in limine (filing 89). For the reasons that follow, the Jamisons' motion will be granted and Depositors' motion denied. Additionally, Depositors has filed a motion for leave to amend its answer to assert a new counterclaim for reformation (filing 145). That motion will also be denied.

THE JAMISONS' MOTION IN LIMINE

The Jamisons move the Court to exclude, at trial, any expert testimony from Depositors based, in part, on Depositors' failure to comply with the disclosure requirements of Fed. R. Civ. P. 26(a)(2). The Jamisons contend that the parties agreed Depositors' expert disclosures would be provided by April 15, 2015,¹ and that as of May 14, when the Jamisons' motion was filed, they had not received such disclosures. Depositors' sole argument in response is that they had effectively disclosed their experts, in their answers to interrogatories that had been served on July 3, 2014. Filing 117 at 4-5. But those interrogatory responses are clearly insufficient to satisfy Rule 26(a)(2).

Rule 26(a)(2) sets forth different requirements for witnesses who are "retained or specially employed to provide expert testimony in the case" or"whose duties as the party's employee regularly involve giving expert testimony," and witnesses who do not meet those criteria. The Court will begin with the retained experts.

RETAINED EXPERTS

Pursuant to Rule 26(a)(2)(B), the disclosure of a retained expert must be accompanied by a written report prepared and signed by the witness, that contains

(i) a complete statement of all opinions the witness will express and the basis and reasons for them;

(ii) the facts or data considered by the witness in forming them;

(iii) any exhibits that will be used to summarize or support them;

(iv) the witness's qualifications, including a list of all publications authored in the previous 10 years;

(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and

(vi) a statement of the compensation to be paid for the study and testimony in the case.

Depositors contends that the following interrogatory colloquy sufficed to meet the requirements of Rule 26(a)(2)(B):

INTERROGATORY NO. 2: State the name and address of each person whom You expect to call as an expert witness in this case. As to each such person, state:

a. The subject matter on which the expert is expected to testify;

b. The substance of the facts and opinions to which the expert expects to testify;

c. A summary of the grounds for each opinion; and

d. The qualifications for each expert.

ANSWER: Defendant expects to call Bruce Boehm Carlson or other representative of Vieau Associates, Inc. In answer to subparts a-d, please see documents identified with bates #Jamison00023-00025 and Jamison00268-00271.

Filing 117 at 4-5 (citing filing 84-1 at 4). The documents referred to are also in the record. See filings 54-5 and 54-6.

But neither the interrogatory answer nor the documents referred to comply with the requirements of Rule 26(a)(2)(B), even assuming that theyrepresent "complete statement[s] of all opinions the witness will express." Information about the basis and reason for those opinions, and the facts or data considered, is scant.² No exhibits are identified. And nothing is said about the witness's qualifications, other testimony, or compensation. The fact of the matter is that the reports referred to were not prepared as expert disclosure statements—they were prepared for Depositors by contractors engaged to assist in claims adjustment, and were written for a reader who was already familiar with information that, in the context of litigation, must be provided to the opposing party.

NON-RETAINED EXPERTS

Rule 26(a)(2)(C) provides that for experts who are not required to provide a written report, the disclosure must state "(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify." Depositors points to this interrogatory response, to the same question set forth above: "Ryan Deardorff and Chad Chichosz are general adjusters and have specilized [sic] knowledge and expertise in the assessment and adjustment of property claims. Messrs. Deardorff and Chichosz are representatives of Defendant and not retained experts." Filing 117 at 5 (citing filing 84-1 at 4).

But that response does not even clear the lowered bar of Rule 26(a)(2)(C). Even if the Court permits a description of the witnesses as having expertise "in the assessment and adjustment of property claims" as somehow identifying the subject matter of their testimony, that does nothing to summarize the facts and opinions to which they are expected to testify.

REMEDY

It is apparent to the Court that Depositors' "disclosure," such as it was, did not comply with Rule 26(a)(2). And a party's failure to disclose in a timely manner is equivalent to a failure to disclose. Trost v. Trek Bicycle Corp., 162 F.3d 1004, 1008 (8th Cir. 1998) Under Federal Rule of Civil Procedure 37(c)(1), the Court may exclude the information or testimony as a self-executing sanction unless the party's failure to comply is substantially justified or harmless. Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir. 2008). The Court's power to exclude exhibits and witnesses not disclosed in compliance with its discovery and pretrial orders is essential to its control over the case. Sellers v. Mineta, 350 F.3d 706, 711 (8th Cir. 2003). Accordingly, when a party fails to provide information or identify a witness in compliance with Rule 26(a), the Court has wide discretion to fashion a remedy or sanction as appropriate for the particular circumstances of the case. Wegener, 527 F.3d at 692.

In determining whether the failure to disclose was substantially justified or harmless, and to help decide upon an appropriate sanction or remedy, the Court must also consider the reason for noncompliance, the surprise and prejudice to the opposing party, the extent to which allowing the information or testimony would disrupt the order and efficiency of the trial, and the importance of the information or testimony. Wegener, 527 F.3d at 692. The Court must also consider whether a continuance would be useful. See Amplatz v. Country Mut. Ins. Co., No. 15-2645, 2016 WL 2997598, at *3-4 (8th Cir. May 25, 2016). But here, Depositors has offered literally no justification for its failure to make adequate disclosures. Nor has Depositors presented any basis to disagree with the Jamisons' explanation for how they were prejudiced by that failure. The Court recognizes that expert testimony may be important to Depositors' case. And the Court further recognizes that the exclusion of evidence is a harsh penalty and should be used sparingly. Wegener, 527 F.3d at 692. Exclusion is an extreme sanction and the Court's discretion narrows as the severity of the sanction or remedy it elects increases. Id.

But in the Court's view, the importance of the evidence cuts both ways: it also means that the Jamisons have been prejudiced in their ability to meaningfully respond to Depositors' evidence on a key issue in the case. And candidly, the Court is unsure what alternatives it has, given that Depositors has doubled down on its claimed disclosure, and has neither offered an explanation of its failure to make an adequate disclosure nor addressed the issues of prejudice or remedy in any way. Depositors has not, for instance, suggested that a continuance would be a more appropriate remedy than exclusion, nor is the Court inclined to grant a continuance at this late juncture: Depositors has had more than enough time to ameliorate its rather obvious noncompliance with discovery requirements.

The Court will, therefore, grant the Jamisons' motion in limine and preclude Depositors from presenting expert testimony at trial.³ In light of that conclusion, the Court need not address the Jamisons' alternative argument that the expected expert testimony would not be reliable.⁴

DEPOSITORS' MOTION IN LIMINE

Depositors' motion in limine (filing 89) is not discovery-related. Rather, Depositors contends that the testimony of the Jamisons' retained expert, Steve Hudson, an industrial hygienist, should be excluded pursuant to Fed. R. Evid. 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). The Court disagrees.

The objective of the Daubert inquiry is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. Am. Auto. Ins. Co. v. Omega Flex, Inc., 783 F.3d 720, 722 (8th Cir. 2015). This is a flexible, case-specific inquiry: the Court must decide whether this particular expert had sufficient specialized knowledge to assist the jurors in deciding the particular issues in the case. Id. at 723.

Depositors takes issue with the uncertainty of Hudson's opinions. For instance, Depositors points to Hudson's conclusion that mold growth "'could have occurred'" at the Jamisons' house in less than 4 weeks, and that it is "not reasonable to conclude with any certainty the exact timeframe of the mold growth[.]" Filing 90 at 4 (emphasis omitted). So, Depositors says, Hudson's opinion that he does not and, indeed, cannot know when mold growth began would not "assist the trier of fact to determine when mold growth began." Filing 90 at 4.

Depositors misunderstands the relevance of...