The Humane Society of the United States et al v. National Union Fire Insurance Company of Pittsburgh, PA

Filing 59

MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 7/3/14. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
THE HUMANE SOCIETY OF THE
UNITED STATES, et al.

:

v.

:

Civil Action No. DKC 13-1822

:
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA

:

MEMORANDUM OPINION
Presently
insurance
report

pending

coverage

and

National

case

testimony

Union

and
is

of

Fire

ready
the

the

motion

Defendant.

to

Dennis

Insurance

strike

(ECF No. 49).

resolution

motion

to

Connolly
Company

(“National Union” or “Defendant”).
is

for

strike
filed

of

the

by

this
expert

Defendant

Pittsburgh,

(ECF No. 37).

Plaintiffs’

in

Pa.

Also pending

surreply,

filed

by

The issues have been fully briefed,

and the court now rules, no hearing being deemed necessary.
Local Rule 105.6.
to

strike

denied.

For the following reasons, Defendant’s motion

Plaintiffs’

expert

report

and

testimony

will

be

Defendant’s motion to strike Plaintiffs’ surreply will

be granted, but the footnote in Defendant’s reply brief will not
be considered.
I.

Background
This

case

involves

a

claim

for

insurance

coverage

by

Plaintiffs Humane Society of the United States (“HSUS”) and two

of

its

employees,

Jonathan

Lovvorn

and

Kimberly

Ockene,

in

connection with a suit filed against them by Feld Entertainment,
Inc.

HSUS is a national nonprofit organization dedicated to

protecting

animals.

(ECF

No.

2

¶

1).

Plaintiffs

Jonathan

Lovvorn and Kimberly Ockene are employed as attorneys with HSUS.
(Id.

¶¶ 2-3).

HSUS purchased insurance from National Union

through BB&T, an insurance broker.

(Id. ¶ 8).

National Union

issued to HSUS a Management Liability, Professional Liability,
Crime Coverage and Kidnap and Ransom/Extortion Coverage for Non
Profit Organizations, Policy No. 01-932-56-98, for the policy
period June 1, 2009 to June 1, 2010 (“the Policy”).

(Id. ¶ 9).

The policy includes a Directors and Officers Liability (“D&O”)
Coverage

section

protection

for

and
the

provides

for

organization

$20

million

in

and

individual

Plaintiffs’ complaint alleges that:
[t]he Policy was designed to protect HSUS
and its directors, officers, and employees
from certain risks of loss.
Those risks
included
risks
arising
out
of
their
nonprofit work on behalf of animals, which
included
litigation,
legislative
and
lobbying
efforts,
humane
education
and
public awareness campaigns, and, in part
through its affiliates, owning and operating
animal
sanctuaries
and
wildlife
rehabilitation
centers
on
a
nationwide
basis.
(Id. ¶ 12).

2

insurance
insureds.

In

2000

corporate

and

entity

2003,

the

Fund

that

Plaintiffs

for

Animals

allege

(“FFA”)

was

a

-

a

separate

organization from HSUS but later became affiliated with HSUS brought

lawsuits

against

Feld

Entertainment,

Inc.,

alleging

violations of the Endangered Species Act based on its treatment
of elephants (“the ESA litigation”).

(Id. ¶ 18).

In August

2007, Feld Entertainment, Inc. sued the FFA, claiming violations
of RICO and state law in a conspiracy against Feld Entertainment
(“the 2007 Feld Lawsuit”).
to this lawsuit.

Plaintiffs were not named as parties

The Feld Lawsuit was stayed from November 2007

to December 2009, pending resolution of the ESA Litigation.

In

December 2009, after a non-jury trial, judgment was entered in
favor of Feld Entertainment in the ESA litigation; at that time,
the stay on the 2007 Feld Lawsuit was lifted.
February

2010,

Feld

Entertainment,

Inc.

(Id. ¶ 21).

amended

its

In
2007

complaint, naming HSUS, Jonathan Lovvorn, and Kimberly Ockene –
Plaintiffs here – as additional defendants.

(Id. ¶ 22); see

Feld Entertainment, Inc. v. Animal Welfare Institute, et al.,
United States District Court for the District of Columbia, Case
No. 1:07-cv-01532-EGS, at ECF No. 25.1

1

On May 15, 2014, Feld Entertainment filed a joint
stipulation of dismissal with prejudice in the District of
Columbia, which Judge Emmet G. Sullivan approved.
Feld
Entertainment, Inc. v. Animal Welfare Institute, et al., U.S.
District Court for the District of Columbia, Case No. 1:07-cv01532-EGS, at ECF No. 234. The joint stipulation indicates that
3

Consequently,

Plaintiffs

sought

Union for the Feld Litigation.

coverage

from

National

On May 26, 2010, Chartis, the

administrator handling claims on behalf of National Union, sent
a coverage disclaimer letter to HSUS’s General Counsel, denying
coverage

“based

on

the

during the policy period.”

Insureds’

failure

(Id. ¶ 24).

to

provide

notice

National Union contends

that HSUS failed to disclose in the insurance policy application
that FFA, a corporate affiliate, was already a defendant in the
Feld

Litigation.

“disclaimed

coverage

National

Union

also

because,

pursuant

to

asserts
the

terms

that

it

of

the

National Union policy, the lawsuit brought against FFA in 2007
constituted a claim first made against HSUS in 2007 and thus was
not first made against HSUS during the 2010 policy term.”

(ECF

No. 37-1, at 2).
Plaintiffs initially filed suit against National Union in
the Circuit Court for Montgomery County, Maryland.

On June 21,

Feld Entertainment entered into a Settlement Agreement and
Release with, inter alia, HSUS, Jonathan Lovvorn, and Kimberly
Ockene.
According to a press release issued by Feld
Entertainment, the parties settled in the amount of $15.75
million.
Press Release, Feld Entertainment, Inc., Humane
Society of the United States and Co-Defendants Pay $15.75
Million Settlement to Feld Entertainment Ending 14 Years of
Litigation
(May
15,
2014)
(available
at
http://www.feldentertainment.com/PressRoom/DisplayPressRelease/7
1271/ (last visited July 3, 2014)).
The parties state in the
joint stipulation that the Settlement Agreement and Release
applies to all claims asserted in the action by Feld
Entertainment against the defendants in the case, and by the
defendants against Feld Entertainment.
4

2013,

Defendant

removed

the

action

to

diversity jurisdiction, 28 U.S.C. § 1332.

this

court,

citing

(ECF No. 1).

In the

complaint, Plaintiffs assert a breach of contract claim against
National Insurance, arguing that it “has breached the terms of
the Policy by refusing to pay the losses that Plaintiffs may,
are,

or

will

Litigation.”

be
(ECF

obligated
No.

2

¶

to

pay

36).

because
Plaintiffs

of

the

also

Feld

seek

a

declaratory judgment that National Union is obligated to pay all
losses the Plaintiffs become legally obligated to pay in the
Feld Litigation.

(Id. ¶ 46).

Defendant answered the complaint on June 28, 2013.
No. 10).

(ECF

The undersigned issued a scheduling order on July 1,

2013, setting August 30, 2013 as the deadline for Plaintiffs’
Rule 26(a)(2) expert disclosures.

(ECF No. 11, at 2).

On

August 30, 2013, Plaintiffs served an initial expert disclosure,
identifying Dennis Connolly as an expert witness.
37-6).

(See ECF No.

This initial report stated:
Mr. Connolly has been retained in this
action to opine regarding insurance industry
custom and practice as to the type of
insurance at issue here, the drafting of
insurance
policy
forms
and
provisions,
background on directors and officers (“D&O”)
insurance, and the structure and purpose of
D&O insurance programs.

(Id.

at

3).

The

Rule

26(a)(2)

disclosure

included

Mr.

Connolly’s curriculum vitae, his hourly rate, and a list of

5

cases in which he served as an expert.

The expert disclosure

did not include Mr. Connolly’s opinion regarding any issues in
this dispute.

The disclosure stated that “[b]ecause discovery

in this case has not closed, Mr. Connolly has neither finalized
the list of materials upon which he will rely for his opinions
nor

has

he

supplement

finalized
this

his

opinions.

disclosure

after

Plaintiffs

discovery

will

proceeds,

timely
and

Mr.

Connelly completes his review of materials and finalizes his
expert report.”
sent

a

letter

(Id. at 3-4).
to

Defense counsel subsequently

Plaintiffs,

dated

challenging

the

sufficiency

of

disclosure

and

requesting

that

disclosure.

(See ECF No. 37-7).

the

September

August

Plaintiffs

30,

13,
2013

2013,
expert

supplement

the

The parties then submitted a

consent motion to extend the deadlines for the parties’ Rule
26(a)(2) expert disclosures, setting October 11, 2013 as the new
deadline

for

Plaintiffs

to

submit

their

Rule

26(a)(2)

disclosures, November 8, 2013 as the deadline for Defendant’s
Rule 26(a)(2) disclosures, and November 25, 2013 as the deadline
for Plaintiffs’ rebuttal Rule 26(a)(2) disclosures.
34, at 2).
No. 35).

(ECF No.

The undersigned granted the consent motion.

(ECF

Plaintiffs served on Defendant the supplemental expert

report of Dennis Connolly on October 11, 2013 (ECF No. 37-8).
On November 8, 2013, Defendant moved to strike the expert
report of Dennis R. Connolly and to preclude him from offering
6

testimony in this matter.

(See ECF No. 37).

Plaintiffs opposed

the motion on November 25, 2013 (ECF No. 38), and Defendant
replied on December 30, 2013 (ECF No. 47).

Plaintiffs then

submitted a surreply, and Defendant moved to strike the surreply
on January 22, 2014.

(ECF No. 49).2

On February 14, 2014, the

parties submitted a joint motion stating that they have agreed
to pursue a formal private mediation process before completing
discovery and requested that all proceedings be stayed during
the pendency of the mediation.

(ECF No. 50).

granted the joint motion to stay.

The undersigned

(ECF No. 51).

On April 25,

2014, the parties filed a joint status report indicating that
they

did

discovery.
II.

not

settle

the

case

and

wished

to

proceed

with

(ECF No. 55).3

Analysis
The

admissibility

of

expert

testimony

is

governed

by

Fed.R.Evid. 702 and 703, which vest discretion in the trial
judge to admit evidence if the specialized knowledge will assist

2

Plaintiffs filed a surreply to respond to a footnote in
Defendant’s reply brief.
Local Rule 105.2(a) states that
“[u]nless otherwise ordered by the court, surreply memoranda are
not permitted to be filed.”
Moreover, the footnote in
Defendant’s reply brief is wholly irrelevant to the motion to
strike Plaintiffs’ initial expert report.
Thus, the motion to
strike the surreply will be granted, but the footnote will not
be considered.
3

The parties proposed new discovery deadlines in the joint
status report.
The undersigned approved the parties’ proposed
schedule. (ECF No. 56).
7

the trier of fact to understand the evidence or determine a fact
in issue.

The testimony must be based on sufficient facts or

data; it must be the product of reliable principles and methods;
and the expert must reliably apply the principles and methods to
the facts of the case.
2012).

Moreover,

requirements

for

See In re Rood, 482 B.R. 132, 152 (D.Md.

Fed.R.Civ.P.
expert

26(a)(2)

witnesses

imposes

“retained

or

employed to provide expert testimony in the case.”
26(a)(2)(B).

Specifically,

for

such

disclosure

witnesses,

specially

Fed.R.Civ.P.
the

expert

disclosure must “be accompanied by a written report prepared and
signed by the witness,” which includes:
a complete statement of all opinions to be
expressed
and
the
basis
and
reasons
therefore; the data or other information
considered by the witness in forming the
opinions; any exhibits to be used as a
summary of or support for the opinions; the
qualifications of the witness, including a
list of all publications authored by the
witness within the preceding ten years; the
compensation to be paid for the study and
testimony; and a listing of any other cases
in which the witness has testified as an
expert at trial or by deposition within the
preceding four years.
Fed.R.Civ.P. 26(a)(2)(B).
The curriculum vitae of Dennis Connolly reflects that he is
a

former

Managing

Director

of

Marsh

USA

Inc.,

the

largest

international insurance brokerage, human resource, and employee
benefits consulting firm.

(See ECF No. 37-8).

8

Mr. Connolly has

spent over forty years in the field of insurance and liability
law.

According to the expert report, Plaintiffs have retained

Mr.

Connolly

development

to

and

“present
use

of

expert

testimony

claims-made

directors

liability (‘D&O’) insurance policies.”

regarding
and

(Id. at 2).

the

officers

The expert

report consists of: Mr. Connolly’s qualifications; a primer on
insurance; an explanation of the different types of insurance;
description of the insurance-purchase process; an explanation of
how

insurance

companies

make

money;

explanation

of

D&O

insurance, insurance regulation, and casualty underwriting best
practices; Mr. Connolly’s opinions regarding the questions in
National

Union’s

2009

Not-for-Profit

Risk

Protector

Mainform

Application; Mr. Connolly’s opinion regarding Endorsement No. 6
to

the

National

regarding

whether

Union
the

Policy;
claims

and
against

Mr.

Connolly’s

Plaintiffs

opinion

for

which

Plaintiffs seek coverage were first reported to National Union
during the policy period.
National Union argues that Plaintiffs’ expert report should
be stricken in its entirety, but offers specific objections to
three

opinions

in

the

report:

(1)

that

the

questions

in

Defendant’s application for insurance were ambiguous as to the
information being requested; (2) that Endorsement No. 6 to the
National Union Policy is not intended to apply to any facts,
statements,

warranties,

or

representations
9

in

the

insurance

application that are not material to the insurer as part of the
underwriting process; and (3) that Plaintiffs’ claim was first
made and reported during the policy period of the National Union
Policy.

National Union complains that the content of the expert

report contains legal conclusions, would not aid the jury, and
does not comply with Fed.R.Civ.P. 26(a)(2)(B).4
A. Questions in the Application
Mr. Connolly opines:
Based on my experience in the insurance
industry and knowledge of insurance industry
custom and practice and based on the
materials I have reviewed to date, it is my
opinion that certain questions in that
application,
including
but
not
limited
Questions 3, 5, and 6 under Section B.
CLAIMS HISTORY INFORMATION, are ambiguous as
to the information being requested.
(Id.

¶

54)

(emphasis

added).

National

Union

argues

that

ambiguity in any writing is a question of law, thus Mr. Connolly

4

Plaintiffs’ argument that Defendant’s motion should be
denied for failure to comply with Local Rule 104.7 will be
rejected. Local Rule 104.7 requires counsel to confer with one
another concerning a discovery dispute and attempt to resolve
their differences before coming to court.
Defendant informed
Plaintiffs that it found the August 30, 2013 expert disclosure
wholly inadequate, but it is unclear whether Plaintiffs were
aware – prior to the instant motion - that Defendant also found
inadequate their October 2013 supplemental expert disclosure.
The email correspondence between counsel reveals only that
Defendant requested to depose Mr. Connolly after Plaintiffs
submitted a supplemental expert report, but Plaintiffs refused
to do so before Defendant identified its own expert.
Although
the parties likely would have benefited from conferring before
Defendant filed the motion to strike, the motion will not be
denied on this basis.
10

cannot

opine

application.

on

the

ambiguity

of

the

questions

in

the

National Union cites Mona v. Mona Elec. Group,

Inc., 176 Md.App. 672, 719 (2007), for this proposition.

In

Mona, 176 Md.App. at 719, the court found unambiguous specific
language in a tax basis letter, which memorialized an agreement
between the parties.

Although the court broadly stated that

“[t]he ambiguity vel non of a writing is a question of law,”
this statement was made in the context of determining whether an
agreement between the parties was ambiguous.
v.

Woods,

353

Md.

425,

435

(1999)

See also Calomiris

(interpreting

whether

provisions of a mortgage were ambiguous and stating that “[i]n
determining whether a writing is ambiguous, Maryland has long
adhered

to

contracts.”).

the

law

of

the

objective

interpretation

of

In the insurance context, the proper inquiry is

whether the terms of the policy are ambiguous.

See Nautilus

Ins. Co. v. BSA Ltd. P’ship, 602 F.Supp.2d 641, 648 (D.Md. 2009)
(“[i]f the terms used are unambiguous, the meaning of the terms
are determined by the court as a matter of law.”); Glaser v.
Hartford Cas. Ins. Co., 364 F.Supp.2d 529, 534 (D.Md. 2005)
(“[p]ursuant

to

Maryland

law,

an

insurance

agreement

is

to

viewed as a whole to determine the intention of the parties and
the purpose which they sought to accomplish.”).

National Union

reads Mona too broadly, but, here, the insurance application is
part of the policy issued to Plaintiffs:
11

Signing of this application does not bind
the applicant or the insurer to complete the
insurance, but it is agreed that this
application shall be the basis of the
contract should a policy be issued, and it
will be attached to and become part of the
policy.
(ECF No. 37-3, at 13) (emphasis added).
opinion

regarding

application

the

applies

to

ambiguity
a

of

document

Thus, Mr. Connolly’s

the

which

questions
became

part

in

the

of

the

insurance policy.
Although Mr. Connolly uses the word “ambiguous” to describe
the

information

requested

in

certain

questions

in

the

application, his opinion critiques National Union’s underwriting
practice vis-a-vis best practices in the insurance industry and
does not truly construe a term in the policy.

Mr. Connolly

qualifies his opinion with the following statement:
As
stated
above,
and
consistent
with
insurance industry custom and practice, and
underwriting best practices, National Union
should have and had an obligation to ask
additional questions or for clarification if
it
had
questions
or
concerns
about
information provided in response to its
questions in the insurance application.
(ECF No. 37-8 ¶ 54) (emphasis added).

Thus, Mr. Connolly’s

opinion with respect to questions in the application is that the
questions alone were insufficient for National Union to gather
all the pertinent information to assess the risk presented in
the application.

12

Defendant

also

argues

that

“Mr.

Connolly’s

opinion

that

National Union had an obligation to ask additional questions or
for clarification is an improper legal conclusion. . . . [H]e
may not testify about National Union’s contractual requirements
under

the

Policy.”

(ECF

No.

37-1,

at

10).

Defendant

misconstrues this portion of Mr. Connolly’s testimony.
he

mentions

nothing

about

National

Union’s

First,

contractual

requirements under the policy; he states that in light of best
practices in the insurance industry, National Union should have
probed

deeper

than

the

questions

asked

in

the

application.

Second, the ultimate dispute in this case concerns insurance
coverage.
address

In the context of this case, a legal conclusion would

the

question

of

whether

Plaintiffs

are

or

are

not

entitled to coverage under the terms of their insurance policy
with National Union.
Union’s

obligation

Mr. Connolly’s opinion regarding National
to

ask

prospective

insureds

additional

questions does not reach this ultimate question.
Defendant’s
purported

additional

deficiencies

in

argument
the

that

in

application

discussing
questions,

the
Mr.

Connolly fails to explain the industry custom and practice is
belied by the record.

Mr. Connolly opines that best practices

in the insurance industry require insurers to supplement the
application
applicant.

with

additional

information

He explains:
13

gathered

from

the

An
important
part
of
the
underwriting
process is the insurer’s ability to ask
pertinent questions when concerns arise
regarding
the
risk
presented
in
the
application.
Thus,
before
offering
a
quotation for the coverage, the underwriter
must
take
full
advantage
of
all
opportunities presented in the course of the
application process to probe as deeply as
possible into the exposures proposed to be
covered.
To reiterate, underwriting best
practices call for any such inquiries – and
the answers received from the applicant – to
be
documented
and
maintained
in
the
insurer’s files.
(ECF No. 37-8 ¶ 52).

Whether Mr. Connolly’s opinion regarding

National Union’s purported failure to “probe deeper” will be
helpful to resolving the ultimate issue remains to be seen, but
at

this

point,

his

opinion

regarding

the

clarity

of

the

application appears proper and will not be stricken.
B. Endorsement No. 6
Next, Defendant argues that “Mr. Connolly’s opinion that
Endorsement No. 6 is ‘not intended to apply to’ any facts or
representation in the Policy that are not material to National
Union is not true expert opinion, but another example of his
interpretation

[of]

the

Policy.”

(ECF

No.

37-1,

at

10).

Endorsement No. 6 appears to be part of the Policy issued to
Plaintiffs.

It states that “[t]his endorsement, effective []

June 1, 2009 forms a part of policy number 01-932-56-98 issued
to the Humane Society of the United States Inc. by National
Union Fire Insurance Company of Pittsburgh, Pa.”
14

(ECF No. 37-4,

at 2).
the

D&O

Endorsement No. 6 states that “[s]olely with respect to
Coverage

Section

and

the

EPL

Coverage

Section,

the

following shall apply:
In granting coverage under this policy, it
is agreed that Insurer has relied upon the
statements and representations contained in
the application for this policy (including
materials submitted thereto and, if this is
a renewal application, all such previous
policy applications for which this policy is
a renewal) as being accurate and complete.
All such statements and representations are
the basis of this policy and are to be
considered as incorporated into this policy.
(Id.).

Endorsement No. 6 further states that:
in the event that any of the statements,
warranties
or
representations
is
not
accurately and completely disclosed in the
application, no coverage shall be afforded
to any Claim alleging, arising out of, based
upon, attributable to or in consequence of
the subject matter of any incomplete or
inaccurate
statements,
warranties
or
representations.

(Id.).

With respect to Endorsement No. 6, Mr. Connolly states

in the expert report:
It is also my opinion based on my experience
in the insurance industry and knowledge of
insurance industry custom and practice that
Endorsement No. 6 of the National Union
Policy
entitled
“Severability
of
the
Application Endorsement,” is not intended to
apply to any facts, statements, warranties,
or
representations
in
the
insurance
application that are not material to the
insurer as part of the underwriting process.
(ECF No. 37-8 ¶ 55) (emphasis added).

15

National
Policy

may

Union

be

used

argues
to

that

“[o]nly

determine

the

the

intent

language
of

the

of

the

parties.

Moreover, rather than give an opinion based on some factual
analysis, Mr. Connolly’s legal conclusion concerning the intent
of Endorsement No. 6 is improper and must be stricken.”
No. 37-1, at 10-11).

(ECF

Under Maryland law, courts determine the

meaning of contract language by adhering “to the principle of
the

objective

interpretation

of

contracts.”

ABC

Imaging

of

Washington, Inc. v. The Travelers Indem. Co. of Am., 150 Md.App.
390, 397 (2003).

If a contract, such as an insurance policy, is

unambiguous, “the court must give effect to its plain meaning
and

not

contemplate

intended.”

what

the

parties

may

have

subjectively

Nova Research, Inc. v. Penske Truck Leasing Co., 405

Md. 435, 448 (2008); see also Forest Creek Assoc. v. McLean
Savs. And Loan Ass’n, 831 F.2d 1238, 1242 (4th Cir. 1987) (“Here
again the commitment agreement speaks for itself, and its proper
interpretation is a question of law.
district

court

was

correct

in

Thus, we find that the

excluding

expert

testimony

proffered by the plaintiffs for the purpose of interpreting the
[contract].”); Piankatank River Golf Club, Inc. v. Selective Way
Insurance Company, Civil Action No. 3:08cv606, 2009 WL 1321512,
at

*4

(E.D.Va.

May

11,

2009)

(“it

is

settled

that

it

is

typically improper for a court to rely on expert testimony for
the purposes of interpreting certain terms and/or clauses of a
16

contract.”).

A contract term is ambiguous if, “when read by a

reasonably prudent person, it is susceptible of more than one
meaning.”

Id.

If a term is ambiguous, its interpretation is a

question for the fact finder.

Prison Health Servs., Inc. v.

Balt. Cnty., 172 Md.App. 1, 8 (2006).
Plaintiffs assert that “Mr. Connolly provides guidance to
the trier of fact as to how the members of the industry weigh
certain aspects of the information provided to them during the
insurance purchasing process.”

(ECF No. 38, at 12).

National

Union counters that “Mr. Connolly cannot opine about the actual
intent of unambiguous language in Endorsement 6 based only on
his general experience and knowledge and unspecified custom and
practice

in

the

National

Union

“without

any

insurance
argues

industry.”

that

explanation

Mr.

of

(ECF

Connolly’s

his

relevant

No.

47,

vague

at

3).

references,

experience

or

a

discussion of the custom, adds nothing and certainly does not
permit National Union to determine the basis for his opinion.”
(ECF No. 37-1, at 14).

Fed.R.Civ.P. 26(a)(2)(B) requires expert

disclosures to be accompanied by a written report which includes
“a complete statement of all opinions to be expressed and the
basis and reasons therefore.” (emphasis added).

Although Mr.

Connolly’s report explains basic insurance principles and the
underwriting

process,

the

basis

Endorsement No. 6 is unclear.

for

his

opinion

regarding

Accordingly, Plaintiff will have
17

fourteen (14) days to serve on defense counsel a supplemental
expert report that identifies explicitly the basis and reasons
for

Mr.

intended

Connolly’s
to

apply

representations

in

opinion
to
the

that

Endorsement

No.

facts,

statements,

warranties,

insurance

application

any

6

that

is

are

not
or
not

material to the insurer as part of the underwriting process.
C. Claim First Made During the Policy Period
Defendant also argues that “Mr. Connolly may not testify
that the First Amended Complaint in the Feld Litigation is a
claim that was reported in a timely manner and consistent with
the Policy’s reporting provisions.”

(ECF No. 37-1, at 11).

Mr.

Connolly states:
I have reviewed the Amended Complaint in
Feld Entertainment, Inc. v. ASPCA, et al.,
Civil Action No. 1:07-01532-EGS, which was
filed on February 16, 2010, in the U.S.
District Court for the District of Columbia
(the “2010 Action”).
I have also reviewed
the notice from HSUS to National Union of
the 2010 Action, dated March 1, 2010. Based
on my experience in the insurance industry
and knowledge of insurance industry custom
and practice, and the materials I have
reviewed to date, it is my opinion that the
2010 Action constitutes a claim made and
reported during the policy period of the
National Union Policy and consistent with
the sections of the National Union Policy
entitled “General Terms and Conditions,
Section
7:
Notice/Claim
Reporting
Provisions.”
(ECF No. 37-8 ¶ 57) (emphasis added).
offering

this

testimony,

Mr.
18

Defendant argues that by

Connolly

“is

opining

that

Plaintiffs are entitled to coverage under the Policy – a clear
example of an improper legal conclusion.

Plaintiffs have the

burden of proof to show their entitlement to coverage, and Mr.
Connolly may not testify that Plaintiffs have met their burden.”
(ECF No. 37-1, at 11).

Plaintiffs argue in the opposition that

“Mr. Connolly provides an opinion, not as to the conclusion but
as

to

the

process

–

that

HSUS

performed

each

of

the

steps

necessary to satisfy the obligations of the policy as those
obligations are understood in the industry.”
13).

The

Plaintiffs’

actual

(ECF No. 38, at

content

of

the

expert

report

interpretation

of

Mr.

Connolly’s

contradicts

opinion.

As

Defendant points out, “[n]owhere in his statement . . . does Mr.
Connolly identify the steps in the so-called process or discuss
how

Plaintiffs

complied

with

them.”

(ECF

No.

47,

at

10).

Although Mr. Connolly generally asserts that he draws on his
knowledge and experience in the insurance industry in concluding
that Plaintiffs’ claim falls within the policy period, he does
not explain how he formulated this opinion.

See, e.g., Sullivan

v. Glock, Inc., 175 F.R.D. 497, 503 n.11 (D.Md. 1997) (“[t]he
purpose

of

[Rule

26(a)(2)(B)]

disclosures

is

to

provide

information regarding expert testimony sufficiently in advance
of trial that opposing parties have a reasonable opportunity to
prepare for effective cross examination and perhaps arrange for
expert testimony from other witnesses.” (emphasis in original)
19

(internal citations omitted)).

For instance, Mr. Connolly does

not identify what custom and practice enables him to conclude
that HSUS timely reported the claim to National Union and it is
unclear

how

this

opinion

would

assist

the

trier

of

fact.

Plaintiffs will have fourteen (14) days to serve on defense
counsel

a

supplemental

expert

report

which

clarifies

and

explains the bases for Mr. Connolly’s opinion that the claim was
timely made.
D. Rule 37
Defendant

argues

that

pursuant

to

Fed.R.Civ.P.

37(c),

Plaintiffs should be precluded from presenting expert testimony
at

trial

properly

because
disclose

“Plaintiffs
their

have

expert

now

and

disclosures have been defective.”

had

both

two

times

chances
their

to

expert

(ECF No. 37-1, at 15-16).

Defendant also maintains that the inadequacies of Plaintiffs’
report impeded its ability to prepare its own expert reports.
(ECF

No.

Plaintiffs

37-1,
are

at

14).

allowed

Thus,

another

Defendant

chance

to

asserts
serve

an

that

if

adequate

expert disclosure, National Union should be allowed thirty (30)
days to serve its own expert disclosure.

(ECF No. 47, at 12).

Defendant’s request to preclude all of Plaintiffs’ expert
testimony

will

not

be

granted

37(c)(1) states that:

20

at

this

time.

Fed.R.Civ.P.

[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.
Excluding expert testimony “is an extreme sanction” and, if the
evidence is critical, one “not normally to be imposed absent a
showing

of

willful

deception

or

court order by the proponent.”
F.Supp.2d

737,

745

n.4

‘flagrant

disregard’

of

the

Soufflas v. Zimmer, Inc., 474

(E.D.Pa.

2007);

Metts

v.

Airtrain

Airways, Inc., Civil Action No. DKC 10-0466, 2010 WL 4183020, at
*2-3 (D.Md. Oct. 22, 2010).

Although Mr. Connolly does not

explain the bases for two of his opinions in the expert report –
regarding Endorsement No. 6 and HSUS’s notice of the claim to
National Union – striking expert testimony is a particularly
harsh sanction and in this case, the shortcomings of the expert
report do not warrant precluding Mr. Connolly from testifying
altogether.

See

defendant’s

motion

testimony

where

Metts,
to

2010

WL

preclude

defendant

argued

untimely and grossly inadequate).

4183020,

all
that

of

at

*3

(denying

plaintiff’s

the

disclosures

expert
were

Plaintiffs will have fourteen

(14) days to cure the deficiencies discussed supra.

Defendant

will have thirty (30) days after Plaintiffs serve a supplemental
expert report to serve its own expert disclosure.

21

Plaintiffs

will

then

have

fourteen

(14)

days

to

submit

rebuttal

Rule

26(a)(2) disclosures.
III. Conclusion
For

the

foregoing

reasons,

Defendant’s

motion

to

strike

Plaintiffs’ initial expert report of Dennis Connolly will be
denied.

Defendant’s motion to strike Plaintiffs’ surreply will

be granted, but the footnote in Defendant’s reply brief will not
be considered.

A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

22