Sunflower Condominium Association v. Auto-Owners Insurance Company

Filing 133

ORDER Granting in Part and Denying in Part Defendant's Motion to Strike. T he Court ORDERS the following: Defendant's Motion to Strike (ECF No. 67 ) is GRANTED in part and DENIED in part; Defendant's Motion to Strike (ECF No. 67 ) i s DENIED to the extent that it seeks to have Plaintiff's expert Jason Domecq's testimony excluded; Plaintiff's expert, Jason Domecq's testimony at trial will be limited in scope to the information presented in the Xactimate estima te and the process of obtaining that estimate; Defendant's Motion to Strike (ECF No. 67 ) is GRANTED to the extent that it seeks to prevent both Craig Dixon and Edward Fronapfel from testifying regarding their joint expert opinions; Plaintiff i s ORDERED to choose either Fronapfel or Dixon to testify at trial, but not both; Defendant's Motion to Strike is DENIED to the extent it seeks to exclude David Fords testimony for duplicativeness; and Plaintiff's Motion for Leave to File Sur-reply in Opposition to Defendant's Motion to Strike (ECF No. 76 ) is DENIED as moot. SO ORDERED by Judge William J. Martinez on 3/12/2018. (agarc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 16-cv-2946-WJM-NYW
SUNFLOWER CONDOMINIUM ASSOCIATION, INC., a Colorado nonprofit
corporation,
Plaintiff,
v.
OWNERS INSURANCE COMPANY,
Defendant.

ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION TO STRIKE

Plaintiff Sunflower Condominium Association, Inc. (“Plaintiff”) brings this action
against Defendant Auto-Owners Insurance Company, Inc. (“Defendant”), alleging
breach of contract, statutory bad faith under C.R.S. §§ 10-3-1115&-1116, and com mon
law insurance bad faith. (ECF No. 62 at 4, 5, 6.) This matter is before the Court on
Defendant’s Motion to Strike Plaintiff’s Experts under Rule 37(c) and to Exclude
Duplicative and Cumulative Expert Testimony (“Motion to Strike”). (ECF No. 67.) For
the reasons set forth below, Defendant’s Motion to Strike is granted in part and denied
in part.
I. DISCUSSION
Defendant raises four issues with respect to Plaintiff’s expert testimony in its
Motion to Strike. Defendant argues that: (1) Plaintiff’s expert, Jason Domecq
(“Domecq”), a roofing contractor with R3NG, LLC, failed to disclose information required

to be disclosed under Rule 26(a)(2) (ECF No. 67 at 5); (2) Plaintif f’s expert, Edward
Fronapfel (“Fronapfel”), an engineer with Solutions Before Solutions After, Inc.
(“SBSA”), also failed to disclose information required by Rule 26(a)(2) (id.); (3)
Fronapfel’s testimony is unnecessarily cumulative of testimony by other experts (ECF
No. 67 at 11.); and (4) Plaintiff’s non-retained expert, David Ford (“Ford”), “is highly
duplicative of the planned testimony of Plaintiff’s other experts” (id.). The Court will
consider each of Defendant’s arguments in turn.
A.

Domecq’s Expert Disclosure
Defendant’s first two arguments concern Federal Rule of Civil Procedure

26(a)(2)(B), which provides that “[u]nless otherwise stipulated or ordered by the court,
[an expert] disclosure must be accompanied by a written report—prepared and signed
by the witness—if the 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 report must contain (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 ten 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.” Id.
Under Rule 37(c)(1), “If a party fails to provide information or identify a witness

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as required by Rule 26(a) or (e), the party is not allowed to use that information or
witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless.”
Defendant’s first contention is that the Court should strike Domecq as an expert
in the litigation because Plaintiff “did not provide a written report, prepared and signed
by Domecq, that contained all necessary information.” (ECF No. 67 at 7.) Domecq was
tasked with preparing a cost of repair estimate based on the scope of work identified by
SBSA. (ECF No. 68 at 2.) Defendant argues that Domecq “did not sign the estimate
and there is no indication that he even prepared it;” rather the document appears to
have been prepared by Thalassa Fuhrmann (“Fuhrmann”).1 (ECF No. 67 at 7.)
Defendant claims that Domecq’s written report is also deficient in that it does not
contain: “(i) a complete statement of the opinions Domecq will express, and the basis
for those opinions; (ii) the facts or data Domecq considered in reaching his opinions; (iii)
any exhibits that Domecq will use to summarize or support his opinions; and (iv) the
principles and methods on which Domecq relied in support of his opinions, and a
description of how Domecq applied those principles and methods reliably to the facts of
the case.” (Id. at 8 (internal quotation marks omitted).)
In its Response Opposing Defendant’s Motion to Strike (ECF No. 68
(“Response”)), Plaintiff argues that Domecq “should not be excluded because omission
was substantially justified, and Defendant was not surprised nor prejudiced.” (ECF No.

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Fuhrmann is the owner of a company named Mayhem Restoration & Remodel, which
has no affiliation to Domecq or his employer, R3NG, LLC. (ECF No. 67 at 7.) Defendant notes
that Domecq’s employer may have hired Fuhrmann as an employee, but Plaintiff’s Rule
26(a)(1) disclosures continue to list her as being affiliated with Mayhem. (Id. at 7 n. 3.)

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68 at 2.) Plaintiff contends that Domecq “did not set out all required categories of
information in a ‘narrative-style’ written report because the Xactimate estimate he
produced sets forth most, if not all, requirements for disclosure.” (Id.) According to
Plaintiff, “Domecq’s Xactimate estimate itself is a report of the facts or data considered
in reaching the cost of repair, the complete statement of the expert’s opinion, and the
basis for those opinions. Domecq’s Supplemental Report [ECF No. 68-1
(“Supplemental Report)] simply conveys his estimate in a narrative form and explains
what Xactimate does, which is publicly available on the website.” (Id. at 3 (citations
omitted).)2 In his Supplemental Report, Domecq “explains that he engaged Fuhrmann
to input his scope of work into the Xactimate software. Then, Domecq reviewed all data
entered into the Xactimate software and in the final Xactimate estimate and adopted in
its entirety as his own opinion.” (Id.)
The Court denies Defendant’s request to exclude Domecq, but the scope of
Domecq’s testimony will be limited. Domecq was given SBSA data—that Defendants
also had access to—which he then presented to Fuhrmann to enter into the Xactimate
software. Domecq adopted the numbers produced by the software as his opinion. The
Court understands Domecq’s testimony to amount only to the process of obtaining
Xactimate estimates and the estimates themselves. Based on that understanding, the
Court finds that the more formal errors in Domecq’s expert report are harmless because

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Defendant objects to Plaintiff’s submission of the supplemental expert report, served
seven weeks after the applicable deadline and without leave of court. (ECF No. 75 at 1.) The
Court recognizes that Defendant’s objection is valid, but as the parties have later stipulated that
the tardiness of the supplemental report is no longer a live contention in the case (ECF No. 82),
the Court confines itself to the question of whether the supplemental report, even if timely, is
still inadmissible or inadequate for other reasons.

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Defendant also has the SBSA data. Accordingly, Defendant’s Motion to Strike is
denied to the extent that it seeks to exclude Domecq’s testimony. If Domecq’s
testimony turns out to be more extensive than the Court’s understanding of it,
Defendant may re-raise its objection at the appropriate time.
B.

Fronapfel’s Expert Disclosure
Defendant’s second contention is that “the Court should ex clude Fronapfel as an

expert witness at trial because the written report accompanying the disclosures was not
prepared by Fronapfel.” (ECF No. 67 at 9.) According to Defendant, it appears that
Craig Dixon (“Dixon”), another SBSA engineer, prepared the report and Fronapfel
merely reviewed it. (Id.)
In its Response, Plaintiff argues that “Dixon and other SBSA staff carried out
visual observation of the Sunflower property. Following the observation, Fronapfel
reviewed the observations with Dixon and assigned Dixon, under his responsible
charge of engineering, to prepare the base report of findings and opinions. Fronapfel
reviewed and edited the base report, and based on his education, training , experience,
and knowledge, Fronapfel edited, reviewed, and ultimately concurred with the findings
provided in the final report.” (ECF No. 68 at 8 (citations and emphasis omitted).)
Because Plaintiffs appear to be claiming that Fronapfel and Dixon co-authored
their report, the Court concludes that Plaintiff may only call one expert, either Fronapfel
or Dixon, but not both, to testify as a witness. Thus, Plaintiff is required to choose one
author of the SBSA report to testify regarding the SBSA report. Accordingly,
Defendant’s Motion to Strike is granted to the extent that it claims Plaintiff cannot have
two witnesses testify to the same expert opinions, but denied to the extent that it seeks
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to prevent Plaintiff from choosing between Fronapfel and Dixon.
C.

Needlessly Cumulative Testimony—Dixon and Fronapfel
As its third ground for its Motion, Defendant claims that because “Plaintiff has

disclosed both Fronapfel and Mr. Dixon as experts who will testify in accordance with
the opinions rendered in the SBSA Report[,] . . . Plaintif f is attempting to put forward
duplicative testimony.” The Court concludes that its resolution of Defendant’s second
claim above will also resolve the duplicativness issue. Because Plaintiff is required to
choose between Fronapfel and Dixon to testify at trial, there will be no duplicative
testimony presented regarding their joint opinions.
D.

Needlessly Cumulative Testimony—Ford
Defendant’s fourth argument is that Ford’s testimony will also be “highly

duplicative of the planned testimony of Plaintiff’s other experts, with one other person
designated to testify about repair costs, two other people about the cause of damage to
the Property, and three other people about the scope of damage to the Property.” (ECF
No. 67 at 11.) Ford is a public adjuster, whom Plaintiff designated as a fact witness and
a non-retained expert witness. (ECF No. 68 at 10.) The Court cannot properly evaluate
duplicativeness solely from an attorney’s expert disclosure document alone. Without
the experts’ reports, the Court cannot be sure that actual duplication w ill occur. The
Court therefore concludes that it would not be appropriate to determine duplicativeness
on the present record.
E.

Attorneys’ Fees
Finally, Defendant claims that the Court should require Plaintiff to pay the

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additional attorneys’ fees it incurred as a result of Plaintiff’s errors. (ECF no. 75 at 3.)
The Court has determined that it can best serve the interests of judicial economy by
waiting until the end of this lawsuit to rule on this portion of Defendant’s Motion.
Accordingly, the Court grants Defendant permission to move at the end of these
proceedings for the fees it incurred in bringing its Motion to Strike, specifically as to the
shortcomings in Domecq’s report. See Fed. R. Civ. P. 37(c)(1)(A).
II. CONCLUSION
For the reasons stated above, the Court ORDERS the following:
1.

Defendant’s Motion to Strike (ECF No. 67) is GRANTED in part and DENIED in
part;

2.

Defendant’s Motion to Strike (ECF No. 67) is DENIED to the extent that it seeks
to have Plaintiff’s expert Jason Domecq’s testimony excluded;

3.

Plaintiff’s expert, Jason Domecq’s testimony at trial will be limited in scope to the
information presented in the Xactimate estimate and the process of obtaining
that estimate;

4.

Defendant’s Motion to Strike (ECF No. 67) is GRANTED to the extent that it
seeks to prevent both Craig Dixon and Edward Fronapfel from testifying
regarding their joint expert opinions;

5.

Plaintiff is ORDERED to choose either Fronapfel or Dixon to testify at trial, but
not both;

6.

Defendant’s Motion to Strike is DENIED to the extent it seeks to exclude David
Ford’s testimony for duplicativeness; and

7.

Plaintiff’s Motion for Leave to File Sur-reply in Opposition to Defendant’s Motion
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to Strike (ECF No. 76) is DENIED as moot.

Dated this 12th day of March, 2018.
BY THE COURT:

_______________________
William J. Martínez
United States District Judge

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