Pogue v. The Northwestern Mutual Life Insurance Company

Filing 123

MEMORANDUM OPINION AND ORDER signed by Magistrate Judge Colin H. Lindsay on 4/24/2017. Plaintiff's 115 Motion to Exclude is GRANTED. cc: Counsel(RLK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:14-CV-598-CRS

JAMES H. POGUE,

Plaintiff,

v.
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY,

Defendant.

MEMORANDUM OPINION AND ORDER
This matter is before the Court on a motion to exclude what Plaintiff James H. Pogue
(“Pogue”) describes as an untimely rebuttal report by an expert witness. In the motion to
exclude (DN 115), Pogue contends that Defendant The Northwestern Mutual Life Insurance
Company (“Northwestern Mutual”) violated the operative scheduling order by producing a
rebuttal expert report after the deadline for rebuttal experts had passed. Northwestern Mutual
filed a response and Pogue filed a reply. (DN 116, 121.) The motion to exclude is now ripe for
review.
BACKGROUND
This action arises from Northwestern Mutual’s denial of a disability insurance claim by
Pogue, a physician. Due in large part to a number of discovery-related disputes in this case, the
scheduling order has been modified on several occasions. At times, the scheduling orders
themselves have engendered disagreements, particularly in relation to the deadline for rebuttal
experts. The memorandum opinion entered on December 21, 2016 by Senior Judge Charles R.
Simpson, III provides background information on that issue.

In that opinion and the

accompanying order (DN 118, 119), Judge Simpson denied Pogue’s objections (DN 99) to the
Magistrate Judge’s July 29, 2016 amended scheduling order (DN 96), and the rebuttal expert

deadline established therein remained in effect. Specifically, the amended scheduling order
required both parties to disclose rebuttal experts, if any, no later than August 8, 2016. (DN 96 at
2.) The same deadline applied for Rule 26(e) supplemental disclosures.1 (Id.) Pogue asserts in
his motion to exclude that Northwestern Mutual violated the amended scheduling order by
disclosing a rebuttal expert after the August 8, 2016 deadline.
1.

The Motion to Exclude

Pogue contends that he complied with the amended scheduling order by disclosing his
rebuttal expert report and supplementing his discovery responses on or before August 8, 2016.
(DN 115 at 1.) According to Pogue, Northwestern Mutual merely supplemented its Rule 26(e)
disclosure and its Rule 26(a)(1) initial disclosures; it did not disclose a rebuttal expert report
prior to the August 8, 2016 deadline, and further, it did not inform the Court during an August
17, 2016 status conference of any ongoing issues related to rebuttal experts. (Id. at 2 (citing DN
104 (report and order on August 17, 2016 status conference)).) Instead, according to Pogue, on
September 16, 2016, Northwestern Mutual sent to Pogue’s counsel a rebuttal expert report from
Sara Swanson, PhD, ABPP (“Dr. Swanson”), one of Northwestern Mutual’s expert witnesses.
(Id.) Pogue contends that Dr. Swanson’s rebuttal report should be excluded from evidence,
along with any testimony related to or based on her rebuttal report, due to its untimely nature.
(Id.)

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In the amended scheduling order, the Court also required that, prior to filing any discovery-related motion,
a party confer in good faith with opposing counsel and participate in a telephonic conference with the Court. (DN
96 at 3.) On November 1, 2016, the Court conducted an in-person conference to discuss multiple discovery
disputes. Following that conference, on November 3, 2016, the Court entered an order permitting Pogue to file a
motion “related to alleged violations by Northwestern Mutual of the existing scheduling order, including, without
limitation, violations of the deadlines for written discovery and/or notice of rebuttal experts.” (DN 113 at 2.) Pogue
filed the motion to exclude (DN 115) in accordance with the Court’s November 3, 2016 order.

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Pogue argues that Northwestern Mutual must show that providing its rebuttal expert
report untimely was harmless, and that it has not done so. Specifically, Pogue argues that it is to
permit Northwestern Mutual to use the untimely report would “requir[e] [him] to now question
Swanson [and take further, related discovery] -- after discovery is closed -- [which] would do
nothing more than increase the cost and further delay the litigation.” (Id. at 2.) Pogue contends
that the opinions expressed by Dr. Swanson in the rebuttal expert report were not included in her
initial expert report, and that Northwestern Mutual did not supplement that report. Therefore, he
concludes, the Court should not permit Northwestern Mutual to use the rebuttal expert report in
any way in this case.
Pogue urges the Court to reject any argument by Northwestern Mutual that Dr.
Swanson’s report was merely an addition to the claim file and not a rebuttal expert report. Pogue
concedes that Northwestern Mutual has an ongoing duty to investigate Pogue’s claim for
disability benefits, but he claims that Dr. Swanson’s report was created solely for purposes of
this litigation, not merely to supplement the claim file. (DN 115 at 5.) In support of this
position, Pogue points to the following factors: (1) the report was presented in the form of a letter
addressed to counsel for Northwestern Mutual in this litigation; (2) Dr. Swanson’s language in
the report shows that it was created at defense counsel’s request; (3) Dr. Swanson is employed
by an entity separate from Northwestern Mutual; and (4) the contents of the report show that it
was created solely to rebut Pogue’s rebuttal expert report. (Id. at 5-6.) Finally, Pogue argues
that the rebuttal report goes beyond the scope of Northwestern Mutual’s Rule 26 expert
disclosure and Dr. Swanson’s original expert report.
2.

Northwestern Mutual’s Response
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Northwestern Mutual filed a short response (DN 116). It argues that Pogue’s rebuttal
expert report, produced by Michael H. Cecil, Psy. D., HSPP (“Dr. Cecil”), contains opinions that
are not reflected in or differ from all other medical records in this case, including records
produced by Pogue’s treating physicians. (Id. at 1.) Specifically, according to Northwestern
Mutual, “Dr. Cecil opined that mental restrictions prevent Pogue[] from practicing medicine and
that such restrictions are attributable to ‘brain trauma’ that has never been documented, reported,
described, or identified in any of Pogue’s treatment records.” (Id.) Northwestern Mutual asserts
that Pogue’s longtime treating physician “has specifically acknowledged that he has no reason to
believe that Pogue ever suffered from any sort of traumatic brain injury;” that Dr. Cecil did not
take a history from Pogue that indicated any history of traumatic brain injury; and that Pogue has
never made a disability claim related to head trauma or mentioned it in any claims materials
submitted to Northwestern Mutual. (Id. at 1-2.)
Northwestern Mutual asserts that after it received Dr. Cecil’s report, it forwarded the
report to Dr. Swanson, who it describes as having “provided Northwestern Mutual with reports
both in connection with the claims determination and as an expert witness in the instant
litigation.” (DN 116 at 2.) Northwestern Mutual insists that Dr. Swanson’s letter is not a
rebuttal expert report, but rather, it is merely an update to the claim file due to the new theory
contained in Dr. Cecil’s report. Nonetheless, Northwestern Mutual goes on to state that “[i]t is
worth noting, however, that Dr. Swanson’s previous reports and Northwestern Mutual’s expert
witness disclosures did not mention Dr. Swanson’s assessment of Dr. Cecil’s report because Dr.
Cecil’s opinions were not provided to Northwestern Mutual until August 8, 2016.”

(Id.)

Therefore, Northwestern Mutual’s position is that it did not have reason to consider the issue of

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head trauma as it may relate to Pogue’s disability claim until the issue was raised by Dr. Cecil.
Northwestern Mutual closes by arguing that because “Dr. Cecil is the first and only medical
provider who has identified traumatic brain injury as a factor in Pogue’s condition[,] [n]either
Northwestern Mutual nor its experts should be prevented from pointing that fact out at trial.”
(Id. at 3.)
3.

Pogue’s Reply

In reply, Pogue reiterates his arguments from the motion to exclude. He contends that
Northwestern Mutual disregarded orders of this Court by issuing a rebuttal expert report over a
month after the applicable deadline had passed, and that Northwestern Mutual has not
demonstrated any justification or evidence of harmlessness in relation to this action. (DN 121 at
2.) Pogue argues that Northwestern Mutual does not and cannot refute his arguments as to why
Dr. Swanson’s letter constitutes a rebuttal expert report rather than a mere supplement to the
claim file. (Id. at 3.)
DISCUSSION
Pursuant to Rule 26(a)(2) of the Federal Rules of Civil Procedure, a party must disclose
its expert witnesses and their reports “in the sequence that the court orders” and “must
supplement these disclosures when required under Rule 26(e).” Fed. R. Civ. P. 26(a)(2)(D), (E).
The deadline for disclosure of rebuttal experts was August 8, 2016. (See DN 96 at 2; DN 118119.) It appears to be undisputed that Pogue complied with this deadline when he produced Dr.
Cecil’s rebuttal report. It is undisputed that Dr. Swanson’s September 16, 2016 letter was
entered in Pogue’s claim file and served on Pogue’s counsel more than a month after the rebuttal
expert deadline had passed.
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Pogue’s argument is simple: he contends that Dr. Swanson’s letter was produced out of
time and that Northwestern Mutual has not shown-- and cannot show-- that this delay was
harmless. He further argues that Dr. Swanson’s letter is not a proper rebuttal expert report
because the opinions asserted therein cannot be found in Northwestern Mutual’s Rule 26 expert
disclosure or in Dr. Swanson’s original expert report.
In response, Northwestern Mutual offers the argument that Dr. Swanson’s letter is not a
rebuttal expert report, but rather, merely an exercise of Northwestern Mutual’s duty to maintain
an updated claim file. It contends that Dr. Cecil’s rebuttal report contains an entirely new theory
of the case, namely, that Pogue is disabled due to head trauma, and that it was compelled to
respond to that by having its consulting neuropsychologist review and respond to Dr. Cecil’s
report.

This position appears reasonable on the surface, but does not withstand scrutiny.

Northwestern Mutual undermines its own position with the two concluding sentences in its
response. It states, “Dr. Cecil is the first and only medical provider who has identified traumatic
brain injury as a factor in Pogue’s condition. Neither Northwestern Mutual nor its experts should
be prevented from pointing that fact out at trial.” (DN 116.) In short, Northwestern Mutual asks
the Court to view Swanson’s letter regarding Dr. Cecil’s opinion as a mere addition to the claim
file, but explicitly asks to permit it to utilize the letter for purposes of this litigation as a rebuttal
to Dr. Cecil.
Regardless of any ongoing duty that Northwestern Mutual may have, outside of this
litigation, to update Pogue’s claim file, it is clear to the Court that Northwestern Mutual wishes
to use Dr. Swanson’s supplemental report as a rebuttal opinion and not merely updating the
claims file. The Court will not permit Northwestern Mutual to do this. The Court construes Dr.
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Swanson’s supplemental report regarding Dr. Cecil’s rebuttal opinion to be an untimely rebuttal
expert opinion. On the basis of the current record, Pogue’s motion to exclude must be granted.
It is notable that Northwestern Mutual could have asserted its position in at least two
other ways. First, Northwestern Mutual could have sought to exclude or limit Dr. Cecil’s
rebuttal expert report due to its having allegedly raised a new theory. See, e.g., Madison Capital
Co., LLC v. S&S Salvage, LLC, 2011 U.S. Dist. LEXIS 4788, *10-13 (W.D. Ky. Jan. 19, 2011)
(excluding portions of rebuttal expert evidence, stating that they were offered “as a means of
bolstering [the] primary expert . . . and its case-in-chief” and that “[t]his is an impermissible use
of rebuttal experts”); Baker v. Chevron USA, Inc., 680 F. Supp. 2d 865, 879 (S.D. Ohio 2010)
(rejecting a so-called rebuttal expert report, reasoning that it “constitute[d] an improper attempt
to correct the weaknesses and improprieties of his original reports”).
Second, Northwestern Mutual could have moved for leave of court to file Dr. Swanson’s
rebuttal of Dr. Cecil’s report out of time. As the proponents of Dr. Swanson’s testimony,
Northwestern Mutual bears the burden of demonstrating that its failure to timely produce her
rebuttal report was harmless. Baker, 680 F. Supp. 2d at 879 (citing Roberts ex rel. Johnson v.
Galen of Va., Inc., 325 F.3d 776, 782 (6th Cir. 2003)). “A violation of Rule 26(a)(2) will
generally be harmless if it involves an honest mistake on the part of one party coupled with
sufficient knowledge on the part of the other party.” Id. (citing Vaughn v. City of Lebanon, 18
Fed. Appx. 252, 264 (6th Cir. 2001)). In this case, Northwestern Mutual could have asserted that
it needed to submit a new, untimely report by Dr. Swanson due to the novelty of Dr. Cecil’s
position in his rebuttal expert report. Moreover, a party is free to move the Court to modify an
existing scheduling order, which the Court may do for good cause; this very case offers several
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examples of situations in which the Court has found that good cause existed to modify a
scheduling order. Fed. R. Civ. P. 16(b)(4).
ORDER
Accordingly, IT IS HEREBY ORDERED that Pogue’s motion to exclude (DN 115) is
GRANTED.
April 24, 2017

Colin Lindsay, MagistrateJudge
United States District Court

cc: Counsel of record

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