Kouzmanoff v. UNUM Life Insurance Company of America

Filing 100

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge Scott T. Varholak on 10/25/18, re 91 First MOTION to Exclude The Testimony of Helen Woodard filed by Thomson Reuters Holdings, Inc.. This Court respectfully RECOMMENDS that Thomson Reuters Motion [#91] be GRANTED and that the Court EXCLUDE the testimony of Helen Woodard pursuant to Federal Rule of Civil Procedure 37(c)(1). (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.

17-cv-00721-RM-STV
17-cv-00976-RM-STV

MARC KOUZMANOFF,
Plaintiff,
v.
UNUM LIFE INSURANCE COMPANY OF AMERICA,
Defendant,
and
MARC KOUZMANOFF,
Plaintiff,
v.
THOMSON REUTERS HOLDINGS, INC.,
Defendant,
______________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
______________________________________________________________________
Magistrate Judge Scott T. Varholak
This matter is before the Court on Defendant Thomson Reuters’ Motion to Exclude
the Testimony of Helen Woodard Pursuant to Fed. R. Civ. P. 26 (the “Motion”) [#91],
which was referred to this Court [#92]. The Court has considered the Motion and related
briefing, arguments made at the August 29, 2018 Motion Hearing, the case file, and the
applicable case law. For the following reasons, the Court respectfully RECOMMENDS

that the Motion be GRANTED and that the Court EXCLUDE the testimony of Plaintiff’s
proposed expert witness, Helen Woodard. 1
I.

BACKGROUND 2
This case arises out of a dispute over short-term disability benefits between

Plaintiff Marc Kouzmanoff and his employer, Defendant Thomson Reuters Holdings, Inc.
(“Thomson Reuters”), and the administrator of Thomson Reuters’ short-term disability
plan, Defendant UNUM Life Insurance Company of America (“UNUM”). [#55 at ¶¶ 2, 4,
22, 46] Plaintiff worked for Thomson Reuters for 30 years, selling legal research services
to attorneys. [Id. at ¶ 22] Plaintiff’s work “involved personal sales presentations to law
firms in a highly-competitive market, working on a commission basis to meet his sales
quota.” [Id. at ¶ 23] Plaintiff’s position also “involved driving.” [Id. at ¶ 24]
In 2011, Plaintiff began having difficulty controlling his Type I Diabetes, “with
frequent hypoglycemia and wide fluctuations in blood glucose readings.” [Id. at ¶¶ 25-26]
As a result, Plaintiff’s physician requested that he reduce his hours and the number of
sales presentations he made. [Id. at ¶ 28] On March 31, 2016, on doctor’s orders, Plaintiff
ceased performing certain material and substantial duties of his employment and
informed Thomson Reuters that performing those duties “involved a high risk of injury or

1

Although the decision to exclude witness testimony generally is not dispositve of a case,
“[a] handful of cases recognize that, in certain unusual circumstances, a ruling that would
ordinarily be non-dispositive, may nevertheless be reviewed as a dispositive ruling.”
Jama v. City & Cty. of Denver, 304 F.R.D. 289, 295 (D. Colo. 2014) (collecting cases). In
an abundance of caution, this Court therefore issues its determination as a
recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil
Procedure 72(b)(1) rather than as an order pursuant to 28 U.S.C. § 636(b)(1)(A) and Rule
72(a).
2 The Court draws factual allegations from the operative complaint—Plaintiff’s Amended
Complaint [#55]—solely to provide context for the instant Motion.
2

mortality, due to the inability to control his blood sugars while performing his required
tasks at the required, usual and customary level.” [Id. at ¶¶ 31-32] Plaintiff then made a
claim for short-term disability benefits, effective March 31, 2016. [Id. at ¶ 33] Plaintiff
was placed on unpaid Family Medical Leave Act leave from April 1, 2016 through July 1,
2016. [Id. at ¶ 35]

From July 1, 2016 through October 6, 2016, Thomson Reuters

provided Plaintiff with modified employment that essentially complied with work
restrictions suggested by Plaintiff’s doctor. [Id. at ¶ 39] On October 6, 2016, Thomson
Reuters terminated Plaintiff’s employment, because it “did not have a sales position for
an employee who could not perform sales.” [Id. at ¶¶ 41-42]
Defendants denied Plaintiff’s claim for short-term disability benefits on the basis
that (1) he did not meet the definition of disability under the plan; and (2) Plaintiff’s
disability was “caused by, contributed to by, or resulting from an occupational sickness.”
[Id. at ¶¶ 45-46] On March 21, 2017, Plaintiff filed a lawsuit against UNUM in the United
States District Court for the District of Colorado (the “District of Colorado”) and a separate
lawsuit against Thomson Reuters in Boulder County District Court. [#23 at 2] On April
20, 2017, Thomson Reuters removed the state court case to the District of Colorado. [Id.]
On June 28, 2017, the Court consolidated the two lawsuits for all purposes. [Id. at 7] On
January 3, 2018, Plaintiff filed his Amended Complaint against Thomson Reuters,
asserting claims for breach of contract, violation of the Colorado Wage Act, Colo. Rev.
Stat. § 8-4-101, et seq., and civil conspiracy. [#55]
The Scheduling Order issued by this Court applicable to the consolidated cases
set February 26, 2018 as the deadline for the disclosure of affirmative experts and March
26, 2018 as the deadline for the disclosure of rebuttal experts. [#27 at 11] On February

3

26, 2018, Plaintiff served Thomson Reuters with his Expert Disclosures, which disclosed
Helen Woodard, M.A., as an expert witness pursuant to Federal Rule of Civil Procedure
26(a)(2)(B). [#91-1 at 11] Plaintiff provided Thomson Reuters a copy of Ms. Woodard’s
report, which is dated July 19, 2017, with the disclosures. 3 [Id.; see also #91-2] According
to her report, Ms. Woodard, who is a Rehabilitation Counselor, was asked to provide “an
opinion regarding [Plaintiff’s] ability to return to his usual work.”

[#91-2 at 1]

Ms.

Woodard’s report consists of (1) a summary of Plaintiff’s work history; (2) a summary of
Plaintiff’s medical records; (3) a summary of Plaintiff’s employment records and earnings
history; (4) a summary of Thomson Reuters’ disability policy and the records specific to
Plaintiff’s claim for disability; (5) a summary of Ms. Woodard’s “Labor Market Research;”
(6) a summary of Ms. Woodard’s interview with Plaintiff’s wife; (7) a summary of Ms.
Woodard’s discussion with Plaintiff about his current status; and (8) a discussion of Ms.
Woodard’s opinions in this case, consisting of six paragraphs and approximately one
single-spaced page of text. [#91-2] Ms. Woodard opined that (1) Plaintiff would “likely
not be able to successfully return to the job of being a salesman such as he has done in
the past, given how the work is typically performed” and (2) “less demanding sales jobs
pay 30% to 50% less than what [Plaintiff] was making at Thom[son] Reuters.” [Id. at 3435]
On April 2, 2018, counsel for Thomson Reuters sent counsel for Plaintiff a request
for “the facts or data relied upon [by Ms. Woodard] with respect to her labor market
research.” [#91-4] On June 18, 2018, Plaintiff responded by providing a supplemental

3

In his response to the Motion, Plaintiff points out that Ms. Woodard’s report previously
was provided to Thomson Reuters on September 15, 2017 with Plaintiff’s initial
disclosures. [#94 at 1]
4

disclosure consisting of a document from the United States Bureau of Labor Statistics
website describing various facts about retail sales workers and customer service
representatives (the “Bureau of Labor Statistics Web Pages”). [#91 at 3; #91-3] Plaintiff
acknowledges that Ms. Woodard “did not keep a copy of what she originally looked at”
when drafting the “Labor Market Research” section of her report and that the Bureau of
Labor Statistics Web Pages provided had been updated since Ms. Woodard drafted her
report. [#94 at 3]
On July 18, 2018, Thomson Reuters filed the instant Motion seeking to exclude the
testimony of Ms. Woodard based upon Plaintiff’s failure to disclose her “labor market
research.” [#91] Plaintiff responded on July 30, 2018, arguing that Ms. Woodard’s report
is largely based upon her experience and Thomson Reuters’ own description of Plaintiff’s
sales position. [#94] On August 13, 2018, Defendant filed its reply in support of the
Motion [#95] and, on August 29, 2018, this Court heard oral argument on the Motion [#98].
II.

LEGAL STANDARD
Federal Rule of Civil Procedure 26(a)(2) provides, in relevant part:
(A) In General. In addition to the disclosures required by Rule 26(a)(1), a
party must disclose to the other parties the identity of any witness it may
use at trial to present evidence under Federal Rule of Evidence 702, 703,
or 705.
(B) Witnesses Who Must Provide a Written Report. Unless otherwise
stipulated or ordered by the court, this 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;
5

(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 10 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.
The Advisory Committee Notes to the 2010 Amendments to Rule 26(a)(2)(B) explain that
the obligation for an expert to provide the “facts or data considered” by the expert witness
in forming her opinions “extends to any facts or data ‘considered’ by the expert in forming
the opinions to be expressed, not only those relied upon by the expert.” The Advisory
Committee Notes further advise that the term “facts or data” should be “interpreted
broadly to require disclosure of any material considered by the expert, from whatever
source, that contains factual ingredients.”
Federal Rule of Civil Procedure 37(c) states, in relevant part, that “[i]f a party fails
to provide information or identify a witness 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.” “The
determination of whether a Rule 26(a) violation is justified or harmless is entrusted to the
broad discretion of the district court.” Woodworker’s Supply, Inc. v. Principal Mut. Life
Ins. Co., 170 F.3d 985, 993 (10th Cir.1999) (quotation omitted). The Tenth Circuit has
identified the following four factors for the Court to consider in determining whether the
failure to disclose is substantially justified or harmless: (1) the prejudice or surprise to the

6

party against whom the testimony is offered; (2) the ability to cure the prejudice; (3) the
potential for trial disruption; and (4) the non-disclosing party’s bad faith or willfulness. Id.
III.

ANALYSIS
There is no dispute that Plaintiff disclosed Ms. Woodard as an expert witness

pursuant to Federal Rule of Civil Procedure 26(a)(2)(B) and thus that Ms. Woodard was
required to provide an expert report that contained “the facts or data considered by [her]
in forming” her opinions pursuant to Rule 26(a)(2)(B)(ii). [#91-1 at 11] Plaintiff appears
to acknowledge that Ms. Woodard has not complied with this requirement as he concedes
that Ms. Woodard “did not keep a copy of what she originally looked at” when preparing
her report and that the Bureau of Labor Statistics Web Pages that were subsequently
provided had been “updated” since Ms. Woodard provided her report. [#94 at 3] At the
hearing, Plaintiff’s counsel further explained that Ms. Woodard did not print the material
she consulted at the time she prepared her report. 4 [See #98]
Pursuant to Rule 37(a), the Court thus must determine whether Plaintiff’s failure to
disclose the facts or data considered by Ms. Woodard was substantially justified or is
harmless. Plaintiff fails to offer any justification for the failure other than to state that Ms.
Woodard “did not keep a copy” of the labor market research she considered when she

4

Despite these concessions, Plaintiff contends in his response to the Motion that “Plaintiff
produced all the data that [Ms.] Woodard reviewed” and “there has been no failure to
disclose anything reviewed by [Ms.] Woodard.” [#94 at 4, 5] Even absent Plaintiff’s
representations to the contrary in the response and at the hearing, the Court would not
find these bald assertions credible. For example, in the Labor Market Research section
of her report, Ms. Woodard states that “[o]f people who feel stressed from work, 77%
reportedly suffer physical symptoms and 73% suffer from psychological symptoms.
Research has shown that when an individual suffers from stress, they are unable to utilize
previous knowledge or training.” [#91-2 at 30] These specific percentages appear to
have been derived from research results considered by Ms. Woodard when preparing her
report that have not been provided to Thomson Reuters.
7

prepared her report. Plaintiff further tries to shift the blame to Thomson Reuters for
waiting over six months after Ms. Woodard’s report was first disclosed with Plaintiff’s initial
disclosures to request the supplemental material. [#94 at 1-2] Neither provides any
justification, let alone a substantial one, for Plaintiff’s failure to comply with the clear
requirements of Rule 26(a)(2)(B)(ii).
To determine whether Plaintiff’s failure to disclose the facts or data considered by
Ms. Woodard is harmless, the Court considers the four Woodworker’s factors.
Woodworker’s Supply, Inc., 170 F.3d at 993; Ortega v. City & Cty. of Denver, No. 11-CV02394-WJM-CBS, 2013 WL 1751944, at *2 (D. Colo. Apr. 23, 2013). Although Thomson
Reuters identified and considered the Woodworker’s factors in its Motion [#91 at 6-8],
Plaintiff failed to expressly address the factors in his response [#94].
A. Prejudice to Thomson Reuters
Thomson Reuters argues that Plaintiff’s failure to disclose the facts or data
considered by Ms. Woodard prejudices it, because it “cannot effectively cross-examine
Ms. Woodard without knowing or having access to the foundation for her opinions” and
also by causing Thomson Reuters to incur unnecessary expense in trying to obtain the
materials and in bringing the instant Motion. [#91 at 7]

Thomson Reuters also notes

that, if Ms. Woodard is permitted to testify, it may require Thomson Reuters to seek time
to supplement its own expert disclosures. [Id. at 8]
Plaintiff argues that Ms. Woodard’s opinions are not based upon any labor market
research, but rather are based upon “her 48-years of experience and knowledge as a
vocational rehabilitation counselor” and “Thomson Reuter’s job description for Plaintiff’s
job.” [#94 at 3, 4] Plaintiff’s counsel, however, fails to provide an affidavit from Ms.

8

Woodard confirming this representation, which appears to be contradicted by the report
itself. For example, Ms. Woodard’s report contends that account managers—the position
she identifies Plaintiff as having held with Thomson Reuters—“should have a bachelor’s
degree in area of specialty and at least five years of experience in the field or in a related
area” [#91-2 at 30], whereas the referenced job description states only that a bachelor’s
degree, without reference to any specialty, is “highly preferred” and the applicant should
have three to five years of professional direct sales experience [#94-1]. Similarly, Ms.
Woodard’s report contends that travel is generally 20 percent to 50 percent of the account
manager’s job [#91-2 at 30], whereas the Thomson Reuters’ job description states only
that “[t]ravel to client meetings is required,” including overnight stays [#94-1].

Ms.

Woodard’s reference to precise numbers of years and percentages suggests that she
considered labor market research that has not been disclosed, rather than just her own
experience, when preparing this portion of her report.
In addition, Ms. Woodard’s report expressly states that “[o]ur labor market research
shows that less demanding sales jobs pay 30% to 50% less than what [Plaintiff] was
making at Thom[son] Reuters.” [#91-2 at 35] Plaintiff’s counsel contends that Ms.
Woodard calculated these percentages by “compar[ing] the labor department statistics
with Plaintiff’s pay” and that the statement also is “generally based on her experience.”
[#94 at 3-4] Once again, Plaintiff provides no affidavit from Ms. Woodard to support this
statement and, regardless, Plaintiff concedes it has not produced the version of the labor
department statistics that Ms. Woodard actually consulted when drafting her report.5

5

Nor has Plaintiff sought leave to serve Defendants with a revised expert report utilizing
only the disclosed data.
9

Moreover, even to the extent Ms. Woodard did not actually rely upon the labor market
research to reach her conclusions (which, for the reasons stated, seems unlikely), the
Advisory Committee Notes to the 2010 Amendments to Rule 26(a)(2)(B) make clear that
the term “facts or data” should be interpreted “broadly” and that the rule requires the
disclosure of all of the facts or data considered by the expert witness in forming her
opinions, “not only those relied upon by the expert.”
The Court thus finds that Plaintiff’s failure to disclose the facts or data relied upon
by Ms. Woodard would prejudice Thomson Reuters, because it prevents Thomson
Reuters from evaluating and challenging the facts or data relied upon by Ms. Woodard in
reaching her conclusions. Thomson Reuters thus would be unable to effectively and
efficiently cross-examine Ms. Woodard at a deposition or at trial. The failure to disclose
this material also may prevent Thomson Reuters’ own experts from effectively and
efficiently responding to Ms. Woodard’s opinions.
B. Ability to Cure the Prejudice
The Court next looks to whether this prejudice may be cured. Over six months
have transpired since Thomson Reuters first notified Plaintiff’s counsel that Ms. Woodard
failed to disclose the facts or data she considered in forming her opinions, and Plaintiff
still has neither (1) disclosed the facts or data; nor (2) sought leave to serve a revised
report based only upon currently available facts and data. 6 At the conclusion of the
Motion Hearing on August 29, 2018, the Court gave Plaintiff “one week to file any

6

The Court does not imply by this reference that any such motion would have been
granted; only that this potential method of limiting the prejudice to Thomson Reuters has
not been pursued by Plaintiff.
10

supplement” if Plaintiff was able to locate supplemental material considered by Ms.
Woodward. No supplement has been filed.
Although Plaintiff suggested in his response to the Motion and at the Motion
Hearing, that many of Ms. Woodard’s opinions are based solely upon her own experience
and/or Thomson Reuters’ job description for Plaintiff’s position, Plaintiff has not offered a
revised version of the report that is limited to these opinions. Moreover, it appears clear
to the Court that Ms. Woodard’s “Labor Market Research” permeates the opinions
contained in the six-paragraph “Discussion” section of her report. [See #91-2 at 34-35]
For example, Ms. Woodard’s opinion that Plaintiff’s “perception of himself as being less
able to pay attention in meetings and to maintain focus when he was having difficulty in
managing his health issues . . . are [sic] likely accurate, as these are known effects of
stress” appears related to Ms. Woodard’s observation in the “Labor Market Research”
section that “[r]esearch has shown that when an individual suffers from stress, they are
unable to utilize previous knowledge or training.” [Id. at 30, 34] Moreover, several of Ms.
Woodard’s opinions relate to her conclusion that Plaintiff will be unable “to successfully
return to the job of being a salesman . . . given how the work is typically performed.” [#912 at 34] Because these opinions extend beyond Plaintiff’s specific prior sales position
with Thomson Reuters to all sales positions, Ms. Woodard’s opinions appear to be based
upon market research beyond Thomson Reuters’ job description for Plaintiff’s position.
Plaintiff thus has not offered any viable method for curing the prejudice to Thomson
Reuters, and the Court is unaware of one that would not involve significant and
unacceptable delay and cost.

11

C. Disruption to the Trial
Trial of this matter is set for a two-day bench trial commencing on February 26,
2019. [#99] Thomson Reuters contends that the trial of this matter would be disrupted
by allowing Ms. Woodard to testify, because, depending on Ms. Woodard’s testimony on
cross-examination, Thomson Reuters “may need to seek a continuance to study this data
and have its witnesses be prepared to address it.” [#91 at 8] The Court does not find
this argument persuasive; Plaintiff’s counsel, after consultation with Ms. Woodard, has
already represented that no additional facts or data considered by Ms. Woodard in
forming her opinions is currently available. Moreover, any such disruption to the trial
could be avoided by permitting Thomson Reuters to take Ms. Woodard’s deposition in
advance of the trial. The Court thus finds that there is not a substantial risk of disruption
to the trial and steps likely could be taken to militate against any potential disruption.
D. Bad Faith or Willfulness
Regarding the final factor, Thomson Reuters argues that Plaintiff’s conduct was
willful and not in good faith, because Plaintiff’s responses to Defendant’s request for the
undisclosed information was delayed and, ultimately, Plaintiff provided a document that
was not actually considered by Ms. Woodard at the time she drafted her report. [#91 at
8] The Court does not find any evidence of outright bad faith or an intention to deprive
Thomson Reuters of the information. Instead, it appears that that there was a lack of
diligence to ensure compliance with the clear mandates of Rule 26(a)(2)(B), “which the
Court cannot encourage.”

Young v. Brock, No. 10-CV-01513-WJM-CBS, 2014 WL

788036, at *3 (D. Colo. Feb. 27, 2014). The Court thus finds this factor neutral. Id.

12

E. Weighing of the Factors
Weighing all the factors, the Court finds that Ms. Woodard’s testimony should be
excluded pursuant to Rule 37(c). Despite having over six months to remedy his failure to
make the disclosures required pursuant to Rule 26(a)(2)(B)(ii), Plaintiff still has not
located the undisclosed material or offered a substitute version of the report devoid of
references to the undisclosed materials and the opinions derived therefrom. Given the
significant prejudice that Ms. Woodard’s testimony would cause Thomson Reuters and
the lack of any reasonable measure to cure it, the Court finds it appropriate to exclude
Ms. Woodard’s testimony. See Cohlmia v. Ardent Health Servs., LLC, 254 F.R.D. 426,
434 (N.D. Okla. 2008) (granting motion to strike expert reports that failed to comply with
the requirements of Rule 26(a)(2)(B) and declining the offer party’s request to supplement
the reports with the required information).
IV.

CONCLUSION
For the foregoing reasons, this Court respectfully RECOMMENDS that Thomson

Reuters’ Motion [#91] be GRANTED and that the Court EXCLUDE the testimony of Helen
Woodard pursuant to Federal Rule of Civil Procedure 37(c)(1). 7

7

Within fourteen days after service of a copy of this Recommendation, any party may
serve and file written objections to the magistrate judge’s proposed findings and
recommendations with the Clerk of the United States District Court for the District of
Colorado. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Griego v. Padilla (In re Griego),
64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court
on notice of the basis for the objection will not preserve the objection for de novo review.
“[A] party’s objections to the magistrate judge’s report and recommendation must be both
timely and specific to preserve an issue for de novo review by the district court or for
appellate review.” United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir.
1996). Failure to make timely objections may bar de novo review by the district judge of
the magistrate judge’s proposed findings and recommendations and will result in a waiver
of the right to appeal from a judgment of the district court based on the proposed findings
and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 57913

DATED: October 25, 2018

BY THE COURT:
s/Scott T. Varholak
United States Magistrate Judge

80 (10th Cir. 1999) (holding that the district court’s decision to review magistrate judge’s
recommendation de novo despite lack of an objection does not preclude application of
“firm waiver rule”); Int’l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d
901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain
portions of magistrate judge’s order by failing to object to those portions); Ayala v. United
States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to
appeal the magistrate judge’s ruling by failing to file objections). But see, MoralesFernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule
does not apply when the interests of justice require review).
14