Miletak et al v. Allstate Insurance Company

Filing 280

CONDITIONAL ORDER Granting 263 Defendants' Motion to Compel a Fed. R. Civ. P. 26 Compliant Expert Disclosure; ALTERNATIVE REPORT AND RECOMMENDATIONS re defendants' request for evidentiary sanctions. Objections due by 5/13/2011. Signed by Magistrate Judge Howard R. Lloyd on 4/29/2011. (hrllc2, COURT STAFF) (Filed on 4/29/2011)

1
2

*E-FILED 04-29-2011*

3
4
5
6
NOT FOR CITATION

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

SAN JOSE DIVISION

11
For the Northern District of California

United States District Court

7

12

VLAHO MILETAK, an individual on his own
behalf and on behalf of all other automobile
insureds of Allstate Insurance Company,

13
14
15

Plaintiff,

No. C06-03778 HRL
CONDITIONAL ORDER GRANTING
DEFENDANTS’ MOTION TO COMPEL
A FED. R. CIV. P. 26 COMPLIANT
EXPERT DISCLOSURE

v.
ALLSTATE INSURANCE COMPANY and
ALLSTATE INDEMNITY COMPANY,

ALTERNATIVE REPORT AND
RECOMMENDATION RE
EVIDENTIARY SANCTIONS

16
[Re: Docket No. 263]

Defendants.
17
/
18
19

In this class action, plaintiff alleges that defendants used misleading bills to obtain

20

payment of insurance premiums before the renewal date of their insureds’ policies. Plaintiff has

21

retained Gerald Udinsky, Ph.D to testify about restitution allegedly owed to class members and

22

Geoffrey Nunberg, Ph.D, a purported linguistics expert, to testify about the allegedly

23

misleading nature of defendants’ bills.

24

Defendants now move this court for an order compelling plaintiff to serve expert

25

disclosures that comply with Fed. R. Civ. P. 26. Alternatively, they request an order precluding

26

plaintiff from presenting any expert testimony. Plaintiff opposes the motion. The matter is

27

deemed suitable for determination without oral argument, and the May 3, 2011 hearing is

28

vacated. CIV. L.R. 7-1(b). Upon consideration of the moving and responding papers, this court

1

conditionally grants defendants’ motion to compel and issues an alternative report and

2

recommendation as to defendants’ request for evidentiary sanctions.

3
4
5
6
7
8
9

The gist of defendants’ motion is that plaintiff failed to serve written reports as part of
his expert disclosures1 and instead served a pleading containing 3 sentences:
Plaintiff reincorporates his January 28, 2008 Rule 26 Expert Disclosure of
Gerald Udinsky and Geoffrey Nunberg as Plaintiffs’ experts. Plaintiff also
incorporates the expert depositions of Mr. Nunberg and Mr. Udinsky taken
by Defendants on November 18, 2009 and November 20, 2009 respectively.
Plaintiffs’ experts will supplement their opinions and reports when Allstate
Defendants supplement and provide or are compelled to provide to Plaintiff,
in readable form, class identity and premium payment information.
(Athanacio Decl., Ex. A). Rule 26 of the Federal Rules of Civil Procedure indisputably
require expert disclosures to be accompanied by a written report prepared and signed by the

11
For the Northern District of California

United States District Court

10

witness. FED. R. CIV. P. 26(a)(2)(B). Plaintiff does not deny that he did not provide written

12

expert reports, but contends that he essentially provided the information required by Fed. R.

13

Civ. P. 26(a)(2)(B) through a prior January 2008 disclosure, as well as 2009 declarations and

14

deposition testimony of Udinsky and Nunberg. Defendants say that they never received the

15

January 2008 disclosure until after the March 21, 2011 expert disclosure deadline. (Kingsley

16

Reply Decl. ¶ 4). In any event, this court does not find the prior disclosures and deposition

17

testimony, provided years ago, to be reasonable compliance with the requirements of Fed. R.

18

Civ. P. 26(a)(2)(B).

19
20

There is palpable prejudice to defendants. The deadline for serving rebuttal expert
reports has passed. And, all discovery will close in a few weeks.

21

Plaintiff’s failure to provide sufficient expert disclosures is not substantially justified.

22

Here, plaintiff says that Udinsky could not provide a written report because defendants have

23

not yet produced their billing data in readable or usable form. Defendants disagree with the

24

assertion that their billing data is somehow deficient, but point out that plaintiff nevertheless

25

did not request an extension of the expert disclosure deadline or move to compel the

26
27
28

1
Defendants also initially argued that plaintiff’s expert reports were untimely
because they were faxed on March 22, 2011, one day after the court-ordered deadline.
However, the record indicates that plaintiff served his disclosures on March 21 by mail and
then provided defense counsel with a courtesy fax copy on March 22. (See Opp. at 6).

2

1

information he now claims Udinsky needs. Moreover, any supposed issue with defendants’

2

billing data would not explain why plaintiff failed to provide a written report from his

3

linguistics expert Nunberg.

4

Based on the foregoing, this court finds that plaintiff is required to serve expert

5

disclosures, including written reports prepared and signed by the witnesses, that comply with

6

Fed. R. Civ. P. 26(a)(2)(B), and plaintiff is ordered to do so. The order is conditioned,

7

however, on the presiding judge’s determination that the present case schedule should be

8

modified to allow additional time for defendants to serve any rebuttal expert reports and to

9

conduct expert discovery.
Alternatively, if the presiding judge decides that modification of the scheduling order

11
For the Northern District of California

United States District Court

10

is not warranted, then this court recommends that he consider precluding plaintiff from

12

offering expert testimony from Udinsky and Nunberg. FED. R. CIV. P. 37(c)(1).

13
14

SO ORDERED.
Dated:

April 29, 2011

15
HOWARD R. LLOYD
16

UNITED STATES MAGISTRATE JUDGE

17
18
19
20
21
22
23
24
25
26
27
28
3

1

5:06-cv-03778-JW Notice has been electronically mailed to:

2

Bonnie Lau

3

Gayle M. Athanacio [e-mail], [e-mail],
[e-mail], [e-mail]

[e-mail], [e-mail]

4
Hillary Noll Kalay

[e-mail]

5
Mark Paul Millen

[e-mail]

6
Samuel Kornhauser

[e-mail]

7
8

Sanford Kingsley [e-mail], [e-mail],
[e-mail]

9

Counsel are responsible for distributing copies of this document to co-counsel who have not
registered for e-filing under the court’s CM/ECF program.

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4