Lopez et al v. Allstate Fire & Casualty Insurance Company

Filing 83

ORDER ON DEFENDANT'S MOTION TO EXCLUDE TESTIMONY OF EXPERT WITNESS ROLANDO DIAZ, M.D. granting in part and denying in part 48 Motion to Exclude Testimony of Expert Witness Rolando Diaz, M.D.. Signed by Judge Marcia G. Cooke on 9/23/2015. (tm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 14-20654-Civ-COOKE/TORRES
FRANK LOPEZ, as personal
representative of the Estate of
Giraldo Lopez, and MAGALY
NUNEZ-DELGADO, individually
and as assignee of Michelle Soto,
Plaintiffs,
v.
ALLSTATE FIRE AND CASUALTY
INSURANCE COMPANY,
Defendant.
__________________________________/
ORDER ON DEFENDANT’S MOTION TO EXCLUDE TESTIMONY
OF EXPERT WITNESS ROLANDO DIAZ, M.D.
Plaintiffs bring this third-party insurance bad faith action against Defendant
Allstate Fire and Casualty Insurance Company (“Allstate”) for its allegedly
unreasonable failure to settle claims made against Allstate’s insured, Michelle Soto,
resulting in an excess judgment against its insured. Before me now is Allstate Fire
and Casualty Insurance Company’s Motion to Exclude Testimony of Expert Witness
Rolando Diaz, M.D. and Memorandum of Law in Support Thereof (ECF No. 48),
Plaintiff’s Response thereto (ECF No. 55), and Allstate’s Reply (ECF No. 60). I have
reviewed the Motion, response, reply, the record, and the relevant legal authorities.
For the reasons that follow, Defendant’s Motion is granted in part and denied in
part.
I.

BACKGROUND

The background facts relating to the allegations raised in Plaintiffs’ Amended
Complaint are detailed in my Order on Plaintiffs’ Daubert Motion to Exclude the
Testimony of D. James Kadyk. (See ECF No. 82). Defendant seeks to exclude
Plaintiffs’ expert, Rolando Diaz, M.D. (“Dr. Diaz”). Plaintiffs disclosed Dr. Diaz as

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an expert witness that is not required to provide a report, pursuant to Federal Rule of
Civil Procedure 26(a)(2)(C). (ECF No. 48-1). Dr. Diaz is Mrs. Nunez Delgado’s
treating physician, and Plaintiffs expect to call him to testify about his medical
opinions of Mrs. Nunez Delgado’s “history of severe depression, anxiety, insomnia,
and hypertension, and the increase in her infirmities as a result of her husband’s
death, including attempts to commit suicide.” Plaintiffs also expect to call Dr. Diaz
to testify that Mrs. Nunez Delgado should avoid stressful situations and that
testifying or attending trial poses serious risk to her health.
Allstate moves to exclude Dr. Diaz’s testimony on the basis that the subject
matter of his testimony is irrelevant to the issues in this third-party common law bad
faith case, and any probative value of such testimony is substantially outweighed by
the unfair prejudice to Allstate. Plaintiffs respond that Dr. Diaz’s testimony is
relevant to the totality of the circumstances surrounding Allstate’s failure to settle,
and Allstate’s Eleventh1 and Fourteenth2 Affirmative defenses.
II.

LEGAL STANDARDS

Rule 702 of the Federal Rules of Evidence provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an opinion
or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to determine a
fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the
facts of the case.

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Allstate’s Eleventh Affirmative Defense is that its failure to settle should be
excused because the “damages to Mrs. Nunez-Delgado were not clear.” (ECF No.
45 at 13).
2

Allstate’s Fourteenth Affirmative Defense is that the Lopez family was not
actually willing to settle its claims for $65,000. (ECF No. 45 at 11-12).
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A district court has the responsibility of acting as a gatekeeper to exclude
unreliable expert testimony. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993). In order to determine the admissibility of expert testimony, a district court
must consider whether: (1) the expert is qualified to testify competently as to the
subject matter he intends to address; (2) the method employed by the expert is
sufficiently reliable; and (3) the testimony assists the trier of fact to comprehend the
evidence through the application of the witness’s expertise. Quiet Tech. DC-8, Inc. v.
Hurel-Dubois U.K. Ltd., 326 F.3d 1333, 1340-41 (11th Cir. 2003). The party seeking to
introduce expert testimony bears the burden of satisfying these criteria by a
preponderance of the evidence. Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306
(11th Cir. 1999). Finally, Federal Rule of Evidence 403 permits the exclusion of
relevant expert testimony if “its probative value is substantially outweighed by a
danger of…unfair prejudice….”
III.

ANALYSIS

Defendant does not challenge Dr. Diaz’s qualifications or his methodology.
Rather, Defendant contends that Dr. Diaz’s opinions are irrelevant, and therefore
not helpful to the trier of fact, and are unduly prejudicial.
Plaintiffs have brought a one-count complaint for third-party common law
bad faith. In order to prevail on this claim, Plaintiffs must prove that Allstate failed
to settle the liability claims against Ms. Soto when it could have and should have,
had it acted fairly and honestly towards its insured, Ms. Soto, and with due regard
for her interests. Fla. Std. Jury Inst. 404.4. “The insurer must investigate the facts,
give fair consideration to a settlement offer that is not unreasonable under the facts,
and settle, if possible, where a reasonably prudent person, faced with the prospect of
paying the total recovery would do so.” Macola v. Gov’t Employees Ins. Co., 953 So. 2d
451, 455 (Fla. 2006) (citation omitted).
Defendant argues that Dr. Diaz’s opinions are irrelevant because damages
Mrs. Nunez Delgado suffered as a result of Ms. Soto’s negligence were already
determined by the judgment entered in the underlying case. Moreover, Defendant
argues that information about Mrs. Nunez Delgado’s medical and mental condition
that was not provided to Allstate during the handling of the subject claim is not

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relevant, and her current condition has no bearing on any issue in this case. Plaintiffs
counter that Dr. Diaz’s testimony is relevant because he will provide information
regarding the extent of Mrs. Nunez Delgado’s injuries and Allstate’s lack of
investigation concerning same, which is evidence that the jury may rely upon in
determining whether Allstate’s failure to settle constituted bad faith. Furthermore,
Plaintiffs argue that Dr. Diaz’s testimony is relevant to refuting Allstate’s defense
that damages to Mrs. Nunez Delgado were “not clear,” and that the Lopez family
was not actually willing to settle its claims for $65,000.
I agree with Defendant in part. To the extent that Dr. Diaz intends to opine
as to Mrs. Nunez Delgado’s medical and mental condition after the window for
settlement had closed (i.e., after October 24, 2011), those opinions are not helpful to
the jury because they are irrelevant to the bad faith claim alleged by Plaintiffs.
Moreover, Mrs. Nunez Delgado’s present medical and mental condition is wholly
irrelevant, even if she does not testify at trial as a result of her medical conditions.
Allowing Dr. Diaz to opine on her current medical state would be unfairly
prejudicial to Defendant.
Dr. Diaz may, however, opine as to Mrs. Nunez Delgado’s medical condition
during the settlement window. This testimony is relevant to the totality of the
circumstances Allstate faced during the time period in which Plaintiffs allege they
were willing to settle their claims against Ms. Soto within policy limits. This
testimony is also relevant to Allstate’s affirmative defense that Plaintiffs were not
actually willing to settle for policy limits on or before October 24, 2011 because
Plaintiffs allege that Mrs. Nunez Delgado’s critical state was part of Frank Lopez’s
considerations in determining to end settlement discussions.
IV.

CONCLUSION

For the foregoing reasons, Defendant’s Motion to Exclude Testimony of
Expert Witness Rolando Diaz, M.D. (ECF No. 48) is GRANTED IN PART and
DENIED IN PART. Dr Diaz is precluded from opining as to Mrs. Nunez Delgado’s
medical and mental state after October 24, 2011. Dr. Diaz may opine as to Mrs.
Nunez Delgado’s medical and mental state during the window for settlement.

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DONE and ORDERED in chambers, at Miami, Florida, this 23rd day of
September 2015.

Copies furnished to:
Edwin G. Torres, U.S. Magistrate Judge
Counsel of record

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