Paulissen v. U.S. Life Ins. Co. in City of Ny

• Decision Date: 13 May 2002
• Docket Number: No. CV 01-07066 ABC.,CV 01-07066 ABC.
• Citation: 205 F.Supp.2d 1120
• Parties: Louise PAULISSEN, Plaintiff, v. UNITED STATES LIFE INSURANCE COMPANY IN THE CITY OF NEW YORK, et al., Defendants.
• Court: U.S. District Court — Central District of California

205 F.Supp.2d 1120

Louise PAULISSEN, Plaintiff, v. UNITED STATES LIFE INSURANCE COMPANY IN THE CITY OF NEW YORK, et al., Defendants.

No. CV 01-07066 ABC.

United States District Court, C.D. California.

May 13, 2002.

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Steven Bergh, Esq., Prenovost Normandin Bergh & Dawe, Santa Ana, for Plaintiff/Petitioner/Appellant.

Michael F. Bell, Esq., Galton & Helm, Los Angeles, for Defendant/Respondent/Appellee.

ORDER RE: PLAINTIFF'S MOTION FOR JURY TRIAL; PLAINTIFF'S MOTION TO EXCLUDE EXPERT WITNESS; DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

COLLINS, District Judge.

This case arises out of the refusal of Defendant United States Life Insurance Company ("U.S.Life") to pay accidental death benefits to Plaintiff Louise Paulissen after the death of her husband, Peter Paulissen. Pending before the Court are three motions: Plaintiff's Motion for Jury Trial, Plaintiff's Motion to Exclude Expert Witness, and Defendant's Motion for Summary Judgment. The Motions came on regularly for hearing before this Court on May 20, 2002. Upon consideration of the submissions of the parties, the case file, and the arguments of counsel, the Court hereby DENIES all three Motions.

I. FACTUAL¹ AND PROCEDURAL HISTORY

In October 2000, at the age of 63, Mr. Paulissen embarked on a trip to Nepal to trek through portions of the Himalayas as part of a group trek organized by the Himalayas Explorers Club. See Amended Separate Statement of Uncontroverted Facts & Conclusions of Law ("UF") ¶ 10. Mr. Paulissen was an experienced mountain climber. He regularly climbed local Southern California mountains and had climbed Mt. Whitney several times, most recently in 1999. Over the years, he had also climbed mountains in Canada and Europe. See UF ¶ 9. On October 28, 2000, while on the trek, Mr. Paulissen died of high-altitude pulmonary edema ("HAPE"). See UF ¶¶ 7-8.

Mr. Paulissen had accidental death and dismemberment coverage with U.S. Life though Certificate No. 01031271103 under a group policy, No. G-175,905, issued to the American Society of Mechanical Engineers. See UF ¶ 1; Exhibit 4. At all times relevant, Mr. Paulissen's Certificate was in force. See UF ¶ 3. The Certificate provides for accidental death benefits in the amount of $450,000 for "accidental loss of life" if an insured person "suffers such loss solely as a result of an injury caused by an accident." See UF ¶ 4. The Certificate also provides that "no benefit will be paid for any loss that results from or is caused directly, indirectly, wholly or partly by ... a physical or mental sickness, or treatment of that sickness." See UF ¶ 5. The Certificate does not define the terms "accident," "injury," or "physical sickness." See UF ¶ 6.

Plaintiff has submitted the expert report of Dr. Judith Klein, who describes HAPE as "a temporary condition caused by ascent to high altitude at a rate greater than the body's ability to adapt." Exhibit 20, sub-exhibit 1. She describes the progression of HAPE as follows:

As the amount of oxygen in the air decreases with increasing altitude, the pressure in the blood vessels in the lung[s] rise[s] abnormally .... This elevated pressure causes leakage of fluid into the air sacs of the lung, making breathing increasing[ly] difficult. The fluid filling the lungs causes a cough that eventually produces pinkish, frothy sputum. The individual with HAPE will eventually asphyxiate and die.

Id. HAPE is, however, completely treatable: "If ... the condition is recognized early and the victim descends to a lower altitude, HAPE can be completely reversed and the victim will suffer no lasting harm." Id.²

On December 15, 2000, Plaintiff submitted a claim form and other documents to Seabury & Smith, an insurance broker for the American Sopciety of Mechanical Engineers. See UF ¶¶ 13-14. On December 28, 2000, U.S. Life received the materials from Seabury & Smith. See UF ¶ 15. On January 17, 2001, John Hyland at U.S. Life retained Larry Odel at International Claims Specialists, a third-party claims investigation company, to conduct an investigation of the claim. See UF ¶ 16. On July 25, 2001, Mr. Hyland informed Plaintiff's counsel that her claim was denied. See UF ¶ 28. According to that letter, U.S. Life concluded "that [Mr. Paulissen's death] would be the result of natural causes and/or would fall under the policy exclusion for `sickness.'" Exhibit 13.

On July 16, 2001, Plaintiff filed suit in Orange County Superior Court against U.S. Life and Tripguard Plus Travel Insurance, alleging claims for declaratory relief and tortious breach of contract. Defendants removed the action to this Court on August 14, 2001, on the basis of diversity jurisdiction, 28 U.S.C. § 1332. On October 30, 2001, the parties stipulated to dismiss National Union Fire Insurance Company, erroneously sued as Tripguard Plus Travel Insurance.

On April 10, 2002, Plaintiff filed motions for a jury trial and to exclude Dr. Eric Weiss as an expert witness, both noticed for hearing on May 6, 2002. Plaintiff withdrew those motions on April 15, 2002.

Plaintiff refiled those motions on April 15, 2002, and April 12, 2002, respectively, both noticed for hearing on May 13, 2002. U.S. Life, the only remaining defendant, filed an Opposition to the Motion for Jury Trial on April 23, 2002. U.S. Life did not file a separate opposition to the Motion to Exclude Expert Witness. U.S. Life's position is stated in a joint stipulation of the parties filed April 15, 2002.

U.S. Life filed a Motion for Summary Judgment on April 15, 2002, also noticed for hearing on May 13, 2002. Plaintiff filed an Opposition on April 29, 2002. U.S. Life filed a Reply on May 6, 2002.³

II. PLAINTIFF'S MOTION FOR A JURY TRIAL

Federal Rule of Civil Procedure 38(b) provides that any party may demand a jury trial by serving and filing a demand in writing no later than 10 days after the service of the last pleading (i.e., the answer). Plaintiff waived her right to a jury trial both by not making a timely demand and explicitly, through her counsel, at the October 29, 2001, Scheduling Conference. See Jury Trial Motion at 4:10-11. Plaintiff acknowledges that this waiver was intentional. See id. at 4:11-12.

Notwithstanding the provisions of Rule 38(b), "the court in its discretion upon motion may order a trial by a jury of any or all issues." Fed.R.Civ.P. 39(b). The Ninth Circuit has consistently held that the district court's discretion under Rule 39(b) is "`narrow' and `does not permit a court to grant relief when the failure to make a timely demand results from an oversight or inadvertence.'" Kletzelman v. Capistrano Unified Sch. Dist., 91 F.3d 68, 71 (9th Cir.1996) (quoting Blau v. Del Monte Corp., 748 F.2d 1348, 1357 (9th Cir.1984)).⁴ When a party intentionally waives her right to a jury trial, she cannot meet the burden of demonstrating "`something beyond the mere inadvertence of counsel ....'" Bellmore v. Mobil Oil Corp., 783 F.2d 300, 307 (2nd Cir.1986) (quoting Alvarado v. Santana-Lopez, 101 F.R.D. 367, 368 (S.D.N.Y.1984)) (plaintiff expressly disclaimed any intent to seek a jury trial). See also Sait Electronics, S.A. v. Schiebel, 846 F.Supp. 17, 18 (S.D.N.Y. 1994) (denying motion for jury trial where "it appears that defendant's failure to make a timely demand was not due to inadvertence at all, but to a deliberate decision followed by ... a change of mind"); cf. Berger v. Goodyear Tire & Rubber Co., 83 F.R.D. 114, 116 (S.D.N.Y. 1979) (granting motion for jury trial where "the failure was a product of mistake inadvertence [sic] and not of an intentional waiver of a jury trial").⁵ Because Plaintiff intentionally and explicitly waived her right to a jury trial, the Court declines to exercise its discretion under Rule 39(b) to order a trial by jury. The Motion for Jury Trial is hereby DENIED.

III. PLAINTIFF'S MOTION TO EXCLUDE EXPERT WITNESS

Plaintiff seeks to exclude the testimony and report of U.S. Life's expert, Dr. Eric A. Weiss, based on U.S. Life's untimely designation of Dr. Weiss and U.S. Life's failure to provide a complete report under Federal Rule of Civil Procedure 26(a)(2)(B).

Plaintiff's Motion to Exclude Expert Witness does not explicitly seek to exclude Dr. Weiss' report from consideration on the Motion for Summary Judgment. The Motion to Exclude is based on alleged violations of Federal Rule of Civil Procedure 26(a)(2), which sets forth requirements for disclosure of experts to be called at trial and does not establish requirements for disclosure of experts to be used in summary judgment motions. However, in Plaintiff's Evidentiary Objections submitted in opposition to the Motion for Summary Judgment, she seeks a ruling on the Motion to Exclude Expert Witness prior to a ruling on the Motion for Summary Judgment. See Evidentiary Objections at 4:22-23. Because the Motion to Exclude Expert Witness does not actually seek exclusion of Dr. Weiss' report at the summary judgment stage, the Court does not necessarily have to rule on this Motion prior to the Motion for Summary Judgment. However, in the interest of resolving as many issues as expeditiously as possible, the Court will address the Motion now.

U.S. Life designated Dr. Weiss as an expert one day late. See Joint Stipulation at 4:16, 20-21. The Court does not find that exclusion is warranted as a sanction for this untimely disclosure. "In order to exclude expert testimony, the opposing party must be prejudiced." Fitz, Inc. v. Ralph Wilson Plastics Co., 184 F.R.D. 532, 536 (D.N.J.1999). There is no prejudice here. It is undisputed that U.S. Life had identified Dr. Weiss as an expert witness and provided Plaintiff with a copy of Dr. Weiss' report six months before the deadline for expert designation. See Joint Stipulation at 4:17-19. Plaintiff was not surprised or caught unprepared by the late designation. The Court will not exclude Dr. Weiss on this ground.

As for the alleged noncompliance with Rule 26(a)(2)(B), Plaintif...