Armstead v. Allstate Property & Casualty Insurance Company
Filing
86
OPINION AND ORDER denying 76 Motion for Reconsideration. Signed by Judge William S. Duffey, Jr on 3/11/2016. (anc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ELAINE ARMSTEAD,
Plaintiff,
v.
1:14-cv-586-WSD
ALLSTATE PROPERTY
& CASUALTY INSURANCE
COMPANY,
Defendant.
OPINION AND ORDER
This matter is before the Court on Plaintiff Elaine Armstead’s (“Plaintiff”)
Second Motion for Reconsideration [76].
I.
BACKGROUND 1
On March 7, 2016, the Court entered its Order [70] on the parties’ respective
motions in limine [48], [49], [50] (“Order on the Motions in Limine”). In it, the
Court granted Allstate’s motions in limine and excluded the testimony of Plaintiff’s
purported experts Bruce Fredrics and Brainard Miller, including because Plaintiff
1
The Court here discusses only those facts pertinent to the pending Second
Motion for Reconsideration. A more thorough discussion of the facts relevant to
this case is found in the Court’s Order on the parties’ motions in limine.
failed to provide expert reports for each witness as required by Federal Rule of
Civil Procedure 26(a)(2)(B), and Plaintiff’s failure was not substantially justified.
On March 8, 2016, Plaintiff filed her First Motion for Reconsideration [72].
In it, Plaintiff argued she properly disclosed Mr. Fredrics as an expert witness, and
that, even if she did not properly disclose him, her failure was substantially
justified. Plaintiff also argued that Mr. Fredrics’s testimony is allowed—even if
she did not comply with the requirements of Rule 26(a)(2)(B) of the Federal Rules
of Civil Procedure—to impeach the testimony of Allstate’s experts.
On March 8, 2016, the Court entered its Order denying Plaintiff’s First
Motion for Reconsideration. ([75]). The Court found that Plaintiff did not present
any newly discovered evidence, intervening development or change in controlling
law, or need to correct a clear error of law or fact that would require the Court to
reconsider its Order on the Motions in Limine. The Court again found that Plaintiff
was required to file an expert report for Mr. Fredrics and Mr. Miller, and that her
failure to do so was not substantially justified.
On March 9, 2016, Plaintiff filed her Second Motion for Reconsideration. In
it, Plaintiff advances four new arguments: (i) even if Mr. Fredrics and Mr. Miller
were required to submit expert reports, their testimony—which is allegedly based
upon their personal observations of damages and actual preparation of estimates of
2
the value of the damages on behalf of Plaintiff—is admissible under Rule 701 as
lay fact testimony in the same way that treating physician testimony is permissible;
(ii) Mr. Fredrics and Mr. Miller were not retained or specially employed to
provide expert testimony, and therefore they were not required to submit Rule 26
expert reports; (iii) Georgia’s rules of evidence allow lay opinion testimony as to
damages, and this is a substantive right in conflict with federal rules; and
(iv) Allstate’s adjusters also did not file Rule 26 disclosures and should therefore
be barred from testifying.
II.
DISCUSSION
A.
Legal Standard
Pursuant to Local Rule 7.2(E), “[m]otions for reconsideration shall not be
filed as a matter of routine practice.” Rather, such motions are only appropriate
when “absolutely necessary” to present: (1) newly discovered evidence; (2) an
intervening development or change in controlling law; or (3) a need to correct a
clear error of law or fact. Bryan v. Murphy, 246 F. Supp. 2d 1256, 1258-59 (N.D.
Ga. 2003) (internal quotations and citations omitted). Motions for reconsideration
are left to the sound discretion of the district court and are to be decided as justice
requires. Belmont Holdings Corp. v. SunTrust Banks, Inc., 896 F. Supp. 2d 1210,
1222-23 (N.D. Ga. 2012) (citing Region 8 Forest Serv. Timber Purchasers Council
3
v. Alcock, 993 F.2d 800, 806 (11th Cir. 1993)).
Local Rule 7.2(E) also provides that a party “shall not file motions to
reconsider to the court’s denial of a prior motion for reconsideration.” LR 7.2(E),
NDGa. Plaintiff’s Second Motion for Reconsideration violates Local Rule 7.2(E).
The Court, in its discretion, nevertheless addresses Plaintiff’s arguments.
B.
Discussion
1.
Treating Physician Testimony
Plaintiff again does not present any newly discovered evidence, intervening
development or change in controlling law, or need to correct a clear error of law or
fact that would require the Court to reconsider its Order on the Motions in Limine
or its Order on Plaintiff’s First Motion for Reconsideration. Plaintiff, however,
now argues that Mr. Fredrics and Mr. Miller are “fact experts” who fall under the
same category as treating doctors. Treating doctors, Plaintiff contends, are not
considered Rule 702 experts “when they testify as to their observations and
treatment of a patient based upon personal knowledge.” (Second Mot. for
Reconsideration at 2).
In support of her argument, Plaintiff relies on United States v. Henderson,
409 F.3d 1293, 1300 (11th Cir. 2005). In Henderson, the Eleventh Circuit
considered whether the district court erred in allowing a treating physician to
4
testify as to her opinion regarding the cause of the victim’s injury. The Court
found that the physician’s diagnosis that the victim’s jaw was fractured was
permissible lay testimony, “but her statement about the cause of the injury
was . . . a hypothesis. And the ability to answer hypothetical questions is the
essential difference between expert and lay witnesses.” Id. (internal quotation
marks and alterations omitted). In reaching the conclusion that the doctor’s
testimony on treatment was allowed but that an opinion on the cause of the injury
was not allowed, the Eleventh Circuit discussed two Tenth Circuit cases, Davoll
v. Webb, 194 F.3d 1116 (10th Cir. 1999), and Weese v. Schukman, 98 F.3d 542
(10th Cir. 1996). In Davoll, the Tenth Circuit held that a “treating physician is not
considered an expert witness if he or she testifies about observations based on
personal knowledge, including the treatment of the party.” 194 F.3d at 1138. In
Weese, the Tenth Circuit similarly commented that a doctor’s lay opinions “were
based on his experience as a physician and were clearly helpful to an
understanding of his decision making process in the situation.” 98 F.3d at 550.
The Court first notes that, to the extent the Eleventh Circuit has recognized
that certain experts may provide lay testimony, the Eleventh Circuit generally has
limited its discussion of this issue to testimony offered by treating physicians. See
Williams v. Mast Biosurgery USA, Inc., 644 F.3d 1312, 1317 (11th Cir. 2011)
5
(“[O]ur discussion in the course of [Henderson] sheds substantial light on the
distinction between lay and expert testimony in the context of physician
testimony.”); R.W. v. Bd. of Regents of the Univ. Sys. of Ga., 114 F. Supp. 3d
1260, 1271 (N.D. Ga. 2015) (applying Henderson treating physician rule to
treating psychologist). Second, even if the treating physician line of cases applies
to other types of experts—and there is not authority that it does—the situation here
is substantially different than the treating physician testimony allowed in
Henderson, Davoll, and Weese. This is not a case where Plaintiff seeks to offer the
testimony of a firefighter who responded to the fire call and who seeks to offer his
skilled observations of what he saw regarding the progress of the fire, where it was
most intense, where the general damage occurred—all things his training allowed
him to observe and explain based on his observations at the scene. To such a
witness, the reasoning in Henderson might be analogous. What Plaintiff seeks to
offer is a trained professional’s detailed investigation of the results of the fire, the
manner in which the claim was handled, the repair work required and what it
would cost—all testimony that requires specialized knowledge or technical
expertise. Fed. R. Evid. 702. Mr. Fredrics’s and Mr. Miller’s testimony on the
scope of the repairs needed, their cost, the claims adjusting process, and the other
opinions Plaintiff seeks them to present, are not lay opinions because they, by their
6
nature, require experience and professional knowledge, and it is for this reason that
they are subject to the requirements of Rule 702 and the disclosures mandated by
Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure.
Mr. Miller’s and Mr. Fredrics’s services were requested well after the fire
and they were engaged specifically to challenge Allstate’s damages estimate and
the processing of Plaintiff’s claim under the Policy. Arguing that Henderson,
Davoll, and Reese allow these retained professionals to offer the testimony
described is like arguing that an expert physician retained to provide a second
opinion about the treatment of an injury is a lay witness allowed under Rule 701
simply because his testimony is based on the facts of an injury. The treating
physician cases upon which Plaintiff relies do not credibly support that the Rule
701 lay witness rule allows the specialized knowledge-based opinions Mr. Fredrics
and Mr. Miller seek to offer in this case.2
2
In its response in opposition to Allstate’s motions in limine, Plaintiff
maintained that Mr. Miller has non-technical personal knowledge of facts relevant
to this case. Specifically, Plaintiff asserts that Mr. Miller personally observed that
Plaintiff’s wiring was “obviously burned,” that lights malfunctioned, and that fuses
were “constantly blowing.” ([53] at 2, 6). The Court noted in its Order on the
Motions in Limine that such lay testimony, based on what Mr. Miller saw at the
house after the fire, is admissible. To the extent Plaintiff now claims she wants to
offer Mr. Fredrics to testify that the “adjuster failed to look inside the wall at the
wires,” this may be allowed if it is not cumulative of Mr. Miller’s testimony and
the evidence is that the adjuster did not look in the walls. (See Pl.’s Reply [84] at
7
2.
“Retained or Specially Employed”
Plaintiff next argues that Mr. Miller and Mr. Fredrics were not “retained or
specially employed to provide expert testimony in the case,” as provided in Rule
26(a)(2)(B) of the Federal Rules of Civil Procedure, and therefore they were not
required to submit an expert report. (Second Mot. for Reconsideration at 4).
Plaintiff appears to argue that, because Mr. Fredrics was initially retained by
Plaintiff before the commencement of this lawsuit, he was not “retained to provide
expert testimony” in this case. This contrived argument to defeat the disclosure
requirements of Rule 26(a)(2)(B) is inconsistent with the facts showing that
Mr. Fredrics was retained for his technical expertise and specialized knowledge to
advocate on Plaintiff’s behalf in this insurance dispute. Mr. Fredrics performed his
professional services for Plaintiff pursuant to a retainer agreement that Plaintiff
entered into with United States Adjusters, the public adjuster company that
employed Mr. Fredrics. The agreement specifically states that United States
Adjusters was “retain[ed]” “to evaluate, advise and assist in the complete
3). To the extent Mr. Fredrics then seeks to offer his opinion on why, in this case,
the wires in the wall presented an “electrical issue,” that opinion would require
specialized knowledge and experience and, for the reasons stated in this Order, is
an expert opinion that is excluded. The jury can use its own judgment to decide if
the facts show the adjuster should have done more.
8
adjustment” of Plaintiff’s damages. (Pl.’s Ex. 62). 3 Plaintiff agreed to compensate
United States Adjusters for the work performed by Mr. Fredrics. Compensation
was on a contingency fee basis. Specifically, Plaintiff agreed to pay United States
Adjusters fifteen percent (15%) of the amount she received from Allstate. (Id.).
Mr. Fredrics then performed his services pursuant to a classic retainer agreement.
Even if Mr. Miller and Mr. Fredrics were not retained as experts initially, the
facts here are that Plaintiff intended to call Mr. Fredrics and Mr. Miller as expert
witnesses at least as early as April 25, 2014, when Plaintiff represented in
discovery that Mr. Fredrics and Mr. Miller would testify on a variety of technical
matters such as “standards for claims handling, methods and standards use [sic] for
calculating construction repair estimates,” and an “estimate of the [repair] costs.”
([7] at 1). That Plaintiff characterized these experts at the time as “non-retained
percipient expert[s]” does not change the fact that they are experts she retained to
3
At the pretrial conference held on March 9, 2016, Plaintiff presented the
Court her Exhibit 62, which is Plaintiff’s retainer agreement with United States
Adjusters, the public adjuster company that previously employed Mr. Fredrics.
Plaintiff argues that Mr. Fredrics was not “retained” to “provide expert testimony”
because the contract states that “[a]t no time will a public adjuster or company
official or employee appear for an ‘Examination Under Oath’ or ‘deposition.’”
(Pl.’s Ex. 62 at 1). As explained below, even if Mr. Fredrics was not “retained” to
“provide expert testimony” in 2012, he was certainly retained to do so very early in
this litigation. He was thus required to comply with the disclosure requirements of
Rule 26(a)(2)(B).
9
provide expert testimony within the meaning of Rule 26(a)(2)(B) and Federal Rule
of Evidence 702. Mr. Fredrics and Mr. Miller, as expert witnesses, were required
to comply with the disclosure requirements of Rule 26(a)(2)(B).
Plaintiff’s untimely submission of Mr. Fredrics’s Rule 26 disclosure—filed
eleven days before the start of trial—further supports that Mr. Fredrics was
“retained to provide expert testimony.” Mr. Fredrics’s Rule 26 disclosure contains
a summary of his opinions. ([61.2]). This summary, signed by Mr. Fredrics,
consists of twenty nine (29) different opinions, all of which require knowledge,
skill, experience and training uncommon to a lay person. See Fed. R. Evid. 702.
Each opinion is based on Mr. Fredrics’s technical and specialized knowledge of the
insurance and adjusting profession and industry. The following opinions are
representative of the 29 opinions which Plaintiff states she intended for
Mr. Fredrics to offer at trial:
1) In my opinion the costs to restore Ms. Armstead’s home to its pre-loss
condition is as reflected in my estimate in the amount of $59,233.51 (RCD)
which has been previously disclosed to Allstate.
...
3) Allstate has a duty to promptly, fully, and reasonably investigate an
insured’s claim. This includes the duty to timely and fairly communicate
with the insured or her representatives about the claim.
...
10
5) Allstate has a contractual obligation to participate in appraisal once
appraisal is invoked by the insured if it disagrees with any amount claimed
by the insured. . . .
6) A homeowner is the person most qualified to give testimony as to the
pre-loss condition of their home . . . .
...
10) Allstate must not rely upon insufficient information to refuse to pay a
claim or any portion of a claim as submitted by an insured.
...
15) Allstate has a duty to interpret all policy provisions in favor of coverage
based on the concept that coverage always applies unless it is excluded,
excepted limited, or restricted from coverage. . . .
...
18) An insurance company has the right to inspect and photograph an
insured risk prior to giving coverage.
...
23) In my opinion, estimates prepared by Paul Davis Restoration, a preferred
contractor, were biased and unreasonably favorable to Allstate.
...
27) In my opinion, Allstate ignored that this was a protein fire, which
creates an oily residue that is not removable from walls, carpet, fabrics, and
other contents without compromising the material which absorbed the oily
residue. . . .
28) In my opinion, Allstate should have had a preferred electrical contractor
come out and inspect and provide an estimate for repairs to electric
immediately upon being alerted to electrical problems. . . .
11
([61.2] at 1-6)
To argue that these opinions are other than ones offered by an expert is not
credible. Each of them requires broad experience and specialized expertise. This
includes the valuation opinion Plaintiff listed. Each opinion that a party seeks to
offer should be separately evaluated to determine if the opinion is one subject to
the requirements of Rule 702. Although Plaintiff argues generally that all of
Mr. Miller’s and Mr. Fredrics’s opinions fall under Rule 701 as fact opinion
testimony, she seems to argue that their repair estimate testimony of the cost to
repair the physical damage to Plaintiff’s property, because it is based on the fact of
physical damage, is allowed under Rule 701 because it is just a calculation of the
cost to repair.
Plaintiff’s deconstruction of the testimony ignores that it requires experience
and expertise to determine the nature and scope of the repairs required, that the
repairs need to comply with code and engineering requirements, that there are
often different options and modalities to restore a structure or components of it,
and that labor and material costs vary—all of which requires experience and
specialized knowledge to be applied by someone, like Mr. Fredrics, who is retained
to develop an estimate of reasonable repair and restoration work. To claim that
what Mr. Miller and Mr. Fredrics did could be done by any lay handyman’s visit to
12
a big box construction supply store ignores the expertise and knowledge these
witnesses necessarily used to develop the opinions Plaintiff wants them to offer.
See James River Ins. Co. v. Rapid Funding LLC, 658 F.3d 1207, 1214 (10th Cir.
2011) (finding that a witness’s testimony did not qualify as lay opinion under Rule
701 where he calculated a post-fire estimate of the pre-fire value of a condemned
building, noting that his calculations were “based in part on his professional
experience in real estate”); Jones Creek Invs., LLC v. Columbia Cty., Ga., 98 F.
Supp. 3d 1279, 1289 (S.D. Ga. 2015) (excluding cost estimate and damages
testimony under Rule 701 where witness was not disclosed under Federal Rule of
Civil Procedure 26(a)(2), finding the proffered testimony was based on
“specialized knowledge”). Their opinions on damage, repair and restoration are
expert opinions subject to Rule 702 and Rule 26(a)(2)(B).
3.
Conflict Between Georgia’s Rules of Evidence and the Federal
Rules
Plaintiff next argues that lay opinion testimony as to the value of damages is
permissible under Georgia’s evidence rules and thus the Court should allow them
in this case even if they are not allowed under the Federal Rules of Evidence or the
Federal Rules of Civil Procedure. (Second Mot. for Reconsideration at 6).
Plaintiff argues that the Georgia rule of evidence on damages is a substantive right,
and by not allowing it Plaintiff is denied her right “to present the value of her claim
13
merely by virtue of being removed to Federal Court.” (Id.). She argues that,
“[w]hile evidentiary rules in Federal Court are generally not substantive, some
state evidentiary rules are substantive in nature, and transcend the
substance-procedure boundary, creating a potential Erie conflict.” (Id. at 7). She
claims the Erie 4 doctrine applies to this state rule of procedure.
Where, as here, state law governs the substantive issues of the case, federal
law still governs procedural matters in federal court. McDowell v. Brown, 392
F.3d 1283, 1294 (11th Cir. 2004). “Rules of procedure encompass rules of
evidence, and therefore, the Federal Rules of Evidence, not state evidentiary laws,
apply.” Id. 5 There are a few occasions where, under the Erie doctrine, a state rule
is substantive rather than procedural in nature, and a federal court must apply the
4
Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)
In McDowell v. Brown, the Eleventh Circuit held that Georgia’s expert
competency rules in O.C.G.A. § 24-7-702, which are more restrictive than Federal
Rule of Evidence 702, apply where a federal court exercises supplemental
jurisdiction over a Georgia medical malpractice case. Dutton v. United States, 621
F. App’x 962, 966 (11th Cir. 2015). McDowell does not apply here, because
O.C.G.A. § 24-7-701(b), not O.C.G.A. § 24-7-702, is at issue. The McDowell
court’s decision was based on its observation that Georgia’s evidentiary rules are
so intimately intertwined with its medical malpractice laws that it would create an
Erie conflict not to apply the state evidentiary rules in federal court. Dutton, 621
F. App’x at 966. This is not a medical malpractice case, and McDowell does not
apply here. Further, the McDowell court addressed whether a witness is competent
to testify. Here, the issue is not whether Mr. Miller and Mr. Fredrics are competent
to testify, rather it is whether they were required to comply with the procedural rule
of Federal Rule of Civil Procedure 26(a)(2)(B).
5
14
state rule. This is not one of them. As the Eleventh Circuit explained:
[T]o aid courts in determining whether a law is substantive or
procedural, the Supreme Court developed a two-part test in Hanna.
Under the Hanna test, when the federal law sought to be applied is a
congressional statute or Federal Rule of Civil Procedure, the district
court must first decide whether the statute is sufficiently broad to
control the issue before the court. If the federal procedural rule is
sufficiently broad to control the issue and conflicts with the state law,
the federal procedural rule applies instead of the state law. A federal
rule applies in the face of a conflicting state rule, however, only if the
federal rule comports with the Rules Enabling Act, 28 U.S.C. § 2072,
and the Constitution.
Royalty Network, Inc. v. Harris, 756 F.3d 1351, 1357-58 (11th Cir. 2014) (internal
quotations and citations omitted). 6
Here, there is no question that Federal Rule of Evidence 701, which
specifically excludes evidence that falls within the scope of Rule 702, is
sufficiently broad to control whether lay opinion testimony on the value of
damages is permissible. Rule 701 also is in conflict with O.C.G.A. § 24-7-701.
O.C.G.A. § 24-7-701(b) provides that “[d]irect testimony as to market value is in
the nature of opinion evidence.” Federal Rule of Evidence 701 does not have such
6
If the federal rule is not sufficiently broad to cover the issue or does not
directly conflict with the state law, the district court should then proceed to the
second prong of the Hanna test, which requires the district court to apply Erie and
its progeny to determine whether failure to apply the state law would lead to
different outcomes in state and federal court and result in inequitable
administration of the laws or forum shopping. Royalty Network, 756 F.3d at 1358.
15
a provision, rather it requires that lay testimony must not be based on “scientific,
technical, or other specialized knowledge within the scope of Rule 702.” Fed. R.
Evid. 701(c). As discussed in this Order, the Court’s Order denying Plaintiff’s
First Motion for Reconsideration, and in the Court’s Order on the Motions in
Limine, the testimony regarding damages Plaintiff seeks to elicit from Mr. Miller
and Mr. Fredrics falls within the “scientific, technical, or other specialized
knowledge within the scope of Rule 702.” Rule 701 is sufficiently broad to control
the issue whether lay opinion damages testimony is admissible, and Rule 701 is in
conflict with O.C.G.A. § 24-7-701(b).7 Rule 701, not O.C.G.A. § 24-7-701(b),
therefore, applies in this case. 8 See Royalty Network, 756 F.3d at 1357-58.
7
The Eleventh Circuit has noted that “[r]egarding the constitutionality of the
federal rules, the Supreme Court has held that rules regulating matters indisputably
procedural are a priori constitutional and . . . rules regulating matters which,
though falling within the uncertain area between substance and procedure, are
rationally capable of classification as either, also satisfy this constitutional
standard.” Royalty Network, 756 F.3d at 1360 (internal quotation marks and
alterations omitted). Plaintiff does not provide any authority to show that Federal
Rule of Evidence 701 does not comport with the Rules Enabling Act.
8
In support of her argument, Plaintiff cites McInnis v. A.M.F., Inc., 765 F.2d
240, 245 (1st Cir. 1985). In McInnis, the First Circuit held that “it is well
recognized that Congress did not intend the [Federal Rules of Evidence] to
preempt so-called ‘substantive’ state rules of evidence such as the parole evidence
rule, the collateral source rule, or the Statute of Frauds.” Id. Plaintiff does not cite
any cases to support that O.C.G.A. § 24-7-701(b) is similarly a “substantive” state
rule of evidence. The foregoing Hanna analysis shows the statute is a procedural,
rather than substantive, rule.
16
Under Rule 701, Mr. Miller and Mr. Fredrics cannot testify as lay witnesses
because their opinions are based on “scientific, technical, or other specialized
knowledge within the scope of Rule 702.” Fed. R. Evid. 701(c). Because
Mr. Miller and Mr. Fredrics are experts under Rule 702, Plaintiff was required to
submit expert reports for Mr. Miller and Mr. Fredrics in accordance with Federal
Rule of Civil Procedure 26(a)(2)(B).
4.
Allstate’s Adjusters’ Rule 26 Disclosures
Finally, Plaintiff argues that Allstate did not provide Rule 26 disclosures for
its professional adjusters, so Allstate should not be permitted to offer its estimates
or opinions on claims handling in this case. First, if Plaintiff intended to seek to
preclude the testimony of Allstate’s claims adjusters, she was required to do so in
her motion in limine. Her argument that her “Motion in Limine to exclude any
evidence not disclosed in discovery” covered this objection is confusing and
nonsensical. The Court denied the majority of Plaintiff’s motions in limine
because they failed to specify the precise evidence or testimony Plaintiff sought to
exclude. The Court also does not understand which specific motion in limine
Plaintiff contends covered Allstate’s claims adjusters who did not file Rule 26
disclosures.
17
Second, even if Plaintiff had moved in limine to exclude the testimony of
Allstate’s claims adjusters, the Court would have denied her motion. Plaintiff’s
argument shows her misunderstanding of the Eleventh Circuit’s decision in Tampa
Bay Shipbuilding & Repair Co. v. Cedar Shipping Co., 320 F.3d 1213, 1223 (11th
Cir. 2003), a case on which Plaintiff relies and that the Court discussed in its Order
on the Motions in Limine. In Tampa Bay, the Eleventh Circuit affirmed a trial
court’s conclusion that three officers of a shipbuilding company were competent to
testify under Rule 701 as to the reasonableness of an amount billed to a customer
for ship repairs. Id. at 1223. The court reasoned that the officers could testify that
the amounts billed by the company for which they worked and which was a party
in the litigation were reasonable because they directly participated in the repair
project, prepared the original estimate for the work, and determined the final
amount to bill themselves. Id. Put another way, these officials simply were
presenting testimony about how they determined the amount billed, and that the
amount billed was, based on their experience at the company, reasonable. Id. at
1219-20. In allowing this employee testimony, the court noted that the Advisory
Committee Notes for Rule 701 observe that courts have permitted an officer of a
business to testify about damages based on his personal knowledge and day-to-day
18
experience with the business, without having to qualify as an expert witness.
Advisory Committee Notes, 2000 Amendments to Rule 701.
In the present case, Allstate’s adjusters—unlike Mr. Fredrics and
Mr. Miller—are Allstate employees who, based on their day-to-day experience
with Allstate’s business and its adjustment of claims, all have personal knowledge
of Allstate’s original estimate and the amount the company agreed to pay under the
policy—the amount that is the basis of Plaintiff’s claims in this case. Allstate’s
adjusters were not “retained or specially employed to provide expert testimony in
the case,” and there is not any evidence to show they are employees “whose
duties . . . regularly involve giving expert testimony.” Fed. R. Civ. P. 26(a)(2)(B).
Mr. Fredrics, on the other hand, was retained “to evaluate, advise and assist in the
complete adjustment,” (Pl.’s Ex. 62), of Plaintiff’s damages in order to challenge
Allstate’s initial assessment. Both Mr. Fredrics and Mr. Miller, as explained
above, were certainly retained, at the latest, by April 2014, to provide expert
testimony in this case.
Plaintiff, in her current motion, seeks the Court to reconsider, for a third
time, the admissibility of Mr. Fredrics’s and Mr. Miller’s testimony. Plaintiff does
not present any newly discovered evidence, intervening development or change in
controlling law, or any need to correct a clear error of law or fact that would
19
require the Court to reconsider its two previous orders on this subject, and
Plaintiff’s Second Motion for Reconsideration is denied. Local Rule 7.2(E)
provides that a party “shall not file motions to reconsider to the court’s denial of a
prior motion for reconsideration.” LR 7.2(E), NDGa. The Court will not consider
any further reconsideration motions. 9
III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiff Elaine Armstead’s Second
Motion for Reconsideration [76] is DENIED.
SO ORDERED this 11th day of March, 2016.
9
In her Reply brief, Plaintiff offers extraneous arguments regarding jury
charges. The Court will address jury charges during the charge conference in this
matter.
20
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