Oltz et al v. Safeco Insurance Company of America

Filing 37

ORDER denying 21 Motion in Limine. Signed by Judge Donald W. Molloy on 12/6/2017. (NOS)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

FILED
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CV 16- 124-M-DWM

T AFFORD OLTZ and LaRAYNE
OLTZ,
Plaintiffs,

ORDER
vs.
SAFECO INSURANCE COMPANY
OF AMERICA,
Defendant.

Defendant Safeco Insurance requests an order excluding the testimony of
Plaintiffs Tafford and LaRane Oltz's expert witness, Certified Public Accountant
Ernie Turner. (Doc. 21.) Safeco argues the Oltzes' expert disclosure regarding
Mr. Turner fails to comply with Rule 26(a)(2)(B)(i)-(iv) of the Federal Rules of
Civil Procedure. (Doc. 22 at 5.) The Oltzes oppose the motion.
An expert witness disclosure must contain, inter alia:
(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;
(iii) any exhibits that will be used to summarize or support them;
[and]
(iv) the witness's qualifications, including a list of all publications
authored in the previous 10 years;
-1-

Fed. R. Civ. P. 26(a)(2)(B). Contrary to Safeco's assertion, Turner's expert
disclosure complies with the Rule.
First, the disclosure explains the opinion Turner will provide, as well as the
basis and reason for that opinion. See Fed. R. Civ. P. 26(a)(2)(B)(i). Specifically,
Turner states he has prepared an estimate of the amount of income the Oltzes lost
because they had to withdraw money from an investment account to cover costs
associated with water damages, and that "[t]he estimated amount of loss was
calculated by determining the rate of return [the Oltzes] experienced on [their]
investment account for the one-ye· r period after [they] withdrew funds" with a
a
rate of return provided by the Oltzes' investment advisor. (Doc. 22-1at15.)
Next, the disclosure provides "the facts or data considered" by Turner in
forming his opinion. Fed. R. Civ. P. 26(a)(2)(B)(ii). Turner's report includes a
spreadsheet detailing amounts the Oltzes paid, and the dates on which they paid
them. (Doc. 22-1 at 16.) As noted above, it also explains how Turner used a rate
of return provided by the Oltzes' investment advisor to calculate lost income. 1
The included spreadsheet also "summarize[ s]" the facts Turner considered in

1

By the same reasoning, Federal Rule of Evidence 702 does not bar
Turner's expert testimony. The disclosure shows sufficient facts and reliable
principles reliably applied. See Fed. R. Evid. 702(b )-( d).
-2-

forming his opinion. Fed. R. Civ. P. 26(a)(2)(B)(iii).
Finally, the disclosure also complies with the requirement that an expert
disclosure include the witness's qualifications and a list of publications within the
last 10 years. Fed. R. Civ. P. 26(a)(2)(B)(iv). It identifies Turner as a "certified
Public Accountant in the States of Montana and Ohio" who has "has previously
been licensed in Nevada and Colorado." (Doc. 22-1 at 17.) It further states he
"has been certified for over 50 years" and "is a member of the American Institute
of Certified Public Accountants, the Montana Society of Certified Public
Accountants, and has been a member of the Business Valuation Committee of
CPA Associates International." (Id.) While it does not include a list of
publications, that is because Turner has not published within the relevant time
period.
Despite Safeco's insistence otherwise, brevity alone does not disqualify Mr.
Turner. Accordingly,
IT IS ORDERED that Safeco's motion (Doc. 21) is DENIED.
DATED this c"aay of December, 2017.