Kanellakopoulos v. Unimerica Life Insurance Company

Filing 90

ORDER by Magistrate Judge Howard R. Lloyd re 73 Discovery Dispute Joint Report No. 3. (hrllc2S, COURT STAFF) (Filed on 10/18/2017)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION United States District Court Northern District of California 11 12 IOANNIS KANELLAKOPOULOS, Plaintiff, 13 14 15 16 Case No.5:15-cv-04674-BLF (HRL) ORDER RE DISCOVERY DISPUTE JOINT REPORT NO. 3 v. UNIMERICA LIFE INSURANCE COMPANY, Re: Dkt. No. 73 Defendant. 17 18 Claiming breach of contract and bad faith, plaintiff sues Unimerica for denying him 19 benefits under a catastrophic disability policy. Laura Parker (“Parker”) is a disability insurance 20 appeals specialist who worked for a consulting services vendor called Salt Associates. Plaintiff 21 appealed after Unimerica’s initial denial of benefits, and Unimerica retained Parker to handle the 22 appeal. Parker reviewed the claim file, obtained independent review of the medical records, and 23 ultimately decided the appeal. She wrote and signed the letter denying the appeal. 24 At some point in this litigation, plaintiff’s attorney contacted Parker and interviewed her. 25 The upshot was that Parker executed a declaration about her handling of plaintiff’s appeal. The 26 court has not seen the declaration, but it is a good bet that it contains statements that plaintiff’s 27 counsel deemed favorable. 28 Having come into possession of the Parker declaration, Unimerica’s counsel took her 1 deposition as a fact witness. Defendant asserts that, when it was plaintiff’s turn to cross-examine, 2 Parker was asked questions calling for expert opinion. The court is told that the parties stipulated 3 to a standing objection that defendant reserved all evidentiary objections, including any pertaining 4 to improper opinion testimony. Then, according to the transcript, defense counsel stated and 5 plaintiff’s counsel agreed, as follows: 6 Defense Counsel: It is our position that you are eliciting expert witness testimony from this witness. And, we reserve the right specifically to redepose her in the event that the plaintiff elects to retain Ms. Parker as a testifying opinion witness. Thank you. 7 8 Plaintiff’s Counsel: 9 10 (Dkt. 73 DDJR 3 at 3). Several months later, plaintiff designated Parker as a “percipient expert” pursuant to 11 United States District Court Northern District of California I have no problem with that. 12 Federal Rule of Civil Procedure 26(a)(2)(C). Plaintiff’s counsel said her expert testimony would 13 “expound upon” her declaration and her previous deposition testimony. In response, defendant noticed Parker’s deposition (and apparently issued a subpoena). 14 15 Plaintiff’s counsel refused to cooperate, arguing defendant had plenty of opportunity at the earlier 16 deposition to question Parker extensively about her opinions and that a second deposition would 17 merely be a rehash. And, a court order would be required before a second deposition could be 18 taken. 19 This court is convinced that defendant should have a second deposition of Parker. First, 20 both parties’ counsel agreed to it. Second, even if they had not agreed, it would only be fair to 21 afford defendant the opportunity to question her in her “new” capacity as an expert. And, the 22 taking of such a deposition is, obviously, without prejudice to Unimerica to seek strike her 23 “expert” designation or to exclude “expert” opinions from her testimony at trial. The Parker 24 deposition should be arranged and taken forthwith. If necessary, defendant can have her served 25 with a proper subpoena to compel her attendance where she lives. Plaintiff’s request for sanctions 26 27 28 2 1 is denied.1 SO ORDERED. 2 3 Dated: October 18, 2017 4 5 HOWARD R. LLOYD United States Magistrate Judge 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 The consequences of whether or not Parker will appear for trial and the questions of what trial use may be made of her first and second depositions are for the presiding judge to address on another day. 3

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