Masters v. Safeco Ins. Co. of Am.

• Decision Date: 23 September 2021
• Docket Number: Civil Action 20-cv-00631-PAB-NRN
• Parties: CHRISTOPHER ERIC MASTERS, Plaintiff, v. SAFECO INSURANCE COMPANY OF AMERICA, Defendant.
• Court: U.S. District Court — District of Colorado

CHRISTOPHER ERIC MASTERS, Plaintiff, v. SAFECO INSURANCE COMPANY OF AMERICA, Defendant.

Civil Action No. 20-cv-00631-PAB-NRN

United States District Court, D. Colorado

September 23, 2021

ORDER

PHILIP A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE

This matter is before the Court on Plaintiff's Motion to Strike Certain Opinions of John Palmeri [Docket No. 29] Defendant's Motion to Exclude Testimony of Plaintiff's Legal Expert, Damian Arguello [Docket No 30], Defendant's Motion to Exclude Testimony of Treating Physician Jack Rentz, M.D. Concerning Future Medical Care [Docket No. 31], and Defendant's Motion to Exclude Testimony of Economist Mark Guilford Concerning Future Medical Expenses [Docket No. 32]. The parties responded to each of these motions, Docket Nos. 36, 35, 33, 34 respectively, and replied. Docket Nos. 37, 40, 38, 39.

I. BACKGROUND

The Court assumes the parties' familiarity with the background facts of this case and will not repeat them except as necessary to resolve this motion. Additional background may be found in the order on the parties' motions for summary judgment. See Docket No. 54 at 1-7.

Plaintiff's operative complaint states claims for breach of contract as well as common-law and statutory bad faith. Id. at 7-9, ¶¶ 57-85. The parties both filed motions for summary judgment on the bad faith claims. Docket Nos. 41, 42. The Court dismissed the portion of plaintiff's statutory bad faith claim concerning lost wages and found plaintiff's claims for medical expenses and general damages survive summary judgment. Docket No. 54 at 13. The Court also dismissed plaintiff's common-law bad faith claim. Id. at 27.

Plaintiff has filed a motion to exclude testimony of defendant's legal expert, John Palmeri, under Federal Rule of Evidence 702. Docket No. 29. Defendant has filed three motions to exclude testimony, concerning (1) Damian Arguello, plaintiff's legal expert, under Rule 702, Docket No. 30; (2) Dr. Jack Rentz, plaintiff's treating physician, under Rule 702 and Federal Rule of Civil Procedure 26(a)(2), Docket No. 31; and (3) Mark Guilford, plaintiff's expert on future medical expenses, under Rule 702. Docket No. 32. The Court considers these motions in turn.

II. LEGAL STANDARDS

A. Federal Rule of Evidence 702

Rule 702 of the Federal Rules of Evidence provides that:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. As the rule makes clear, while required, it is not sufficient that an expert be qualified based upon knowledge, skill, experience, training, or education to give opinions in a particular subject area. Rather, the Court must “perform[] a two-step analysis.” 103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 990 (10th Cir. 2006). After determining whether the expert is qualified, the proffered opinions must be assessed for reliability. See id.; Fed.R.Evid. 702 (requiring that the testimony be “based on sufficient facts or data, ” be the “product of reliable principles and methods, ” and reflect a reliable application of “the principles and methods to the facts of the case”).

In ruling on a Rule 702 motion, the district court has a “gatekeeper function to ‘ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.'” United States v. Gabaldon, 389 F.3d 1090, 1098 (10th Cir. 2004) (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993)). To perform that function, a court must “assess the reasoning and methodology underlying the expert's opinion, and determine whether it is both scientifically valid and applicable to a particular set of facts.” Dodge v. Cotter Corp., 328 F.3d 1212, 1221 (10th Cir. 2003) (citing Daubert, 509 U.S. at 592-93). Where an expert witness relies on experience, the expert “must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.” United States v. Medina-Copete, 757 F.3d 1092, 1104 (10th Cir. 2014) (quoting Fed.R.Evid. 702, advisory committee notes). When examining an expert's method, however, the inquiry should not be aimed at the “exhaustive search for cosmic understanding but for the particularized resolution of legal disputes.” Daubert, 509 U.S. at 597. It is the specific relationship between an expert's method, the proffered conclusions, and the particular factual circumstances of the dispute that renders testimony both reliable and relevant.

In addition to the witness having appropriate qualifications and methods, the proponent of the witness's opinions must demonstrate that the process by which the witness derived his or her opinions is reliable. United States v. Crabbe, 556 F.Supp.2d 1217, 1220 (D. Colo. 2008). “[T]he trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). Ultimately, the test requires that the expert “employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Id.

While the proponent of the challenged testimony has the burden of establishing admissibility, the proffer is tested against the standard of reliability, not correctness, see Allstate Sweeping, LLC v. City & Cnty. of Denver, No. 10-cv-00290-WJM-MJW, 2011 WL 2173997, at *3 (D. Colo. June 2, 2011); the proponent need only prove that “the witness has sufficient expertise to choose and apply a methodology, that the methodology applied was reliable, that sufficient facts and data as required by the methodology were used and that the methodology was otherwise reliably applied.” Crabbe, 556 F.Supp.2d at 1221.

Assuming the standard for reliability is met, the Court must ensure that the proffered testimony will assist the trier of fact. See Kumho Tire, 526 U.S. at 156; United States v. Rodriguez-Felix, 450 F.3d 1117, 1122-23 (10th Cir. 2006). “Relevant expert testimony must logically advance[] a material aspect of the case and be sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.” United States v. Garcia, 635 F.3d 472, 476 (10th Cir. 2011) (quotations and citations omitted). In assessing whether expert testimony will assist the trier of fact, a court should consider “whether the testimony ‘is within the juror's common knowledge and experience,' and ‘whether it will usurp the juror's role of evaluating a witness's credibility.'” Id. at 476-77 (quoting Rodriguez-Felix, 450 F.3d at 1123).

Finally, Federal Rule of Evidence 403 permits a court to “exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed.R.Evid. 403.

B. Federal Rule of Civil Procedure 26(a)(2)

Federal Rule of Civil Procedure 26(a) governs the requirements for disclosure of witnesses. Rule 26(a)(2)(B) provides that if a “witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony, ” the party offering the witness must supplement its disclosure with an expert report. For other witnesses, Rule 26(a)(2)(C) applies and the disclosure need only 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.” Fed.R.Civ.P. 26(a)(2)(C).

Treating physicians are typically designated as non-retained and therefore are not subject to Rule 26(a)(2)(B)'s report requirement. See Davis v. GEO Grp., No 10-cv-02229-WJM-KMT, 2012 WL 882405, at *2 (D. Colo. Mar. 15, 2012). However, “it is the substance of the expert's testimony, not the status of the expert, which will dictate whether a Rule 26(a)(2)(B) report will be required.” Trejo v. Franklin, No. 04-cv-02523-REB-MJW, 2007 WL 2221433, at *2 (D. Colo. July 30, 2007) (internal quotation marks and brackets omitted). For example, a treating physician may properly testify about his “observations, diagnosis and treatment of a patient, ” i.e., “what he said and did and why he did it” - without submitting an expert report. Davis, 2012 WL 882405, at *2. On the other hand, if the physician opines as to issues of “causation, prognosis, or future disability” going beyond his personal observation or treatment of the patient, or “review[s] the records of another health care provider in order to formulate [an] opinion on the appropriateness of care, ” the witness will be considered “retained or employed” and will be required to file a written report under Rule 26(a)(2)(B). Id.; see also Meyers v. Nat'l R.R. Passenger Corp., 619 F.3d 729, 734-35 (7th Cir. 2010) (holding that “a treating physician who is offered to provide expert testimony as to the cause of the plaintiff's injury, but who did not make that determination in the course of providing treatment, should be deemed to be one ‘retained or specially employed to provide expert testimony in the case,' and thus is required to submit an expert report in...