Kuehl v. Jefferson Pilot Financial et al

Filing 56

ORDER - The plaintiff's Motion for Leave to Designate Expert Witness (Filing no. 46 ) is granted. The plaintiff shall have until July 15, 2013, to provide a complete report as required by Fed. R. Civ. P. 26(a)(2)(B). The defendant's Mot ion to Strike Plaintiffs Designation of Expert Witness (Filing No. 52 ) is granted in part and denied in part. The defendant shall have until August 7, 2013, to disclose an expert witness and provide a report as required by Fed. R. Civ. P. 26(a)( 2). The motion is denied in all other respects. Motions for summary judgment shall be filed not later than August 14, 2013. All other deadlines remain as scheduled. See Filing Nos. 41 and 44 . Ordered by Magistrate Judge Thomas D. Thalken. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

TERRENCE KUEHL,
Plaintiff,

8:12CV260

vs.
ORDER
THE LINCOLN NATIONAL LIFE
INSURANCE CO.,
Defendant.
This matter is before the court on two motions. The plaintiff, Terrence Kuehl
(Kuehl), filed a Motion for Leave to Designate Expert Witness (Filing No. 46) with a brief
(Filing No. 47) in support. In response, the defendant, Lincoln National Life Insurance
Co. (Lincoln National), filed a Motion to Strike Plaintiff’s Designation of Expert Witness
(Filing No. 52) with a brief (Filing No. 54) and index of evidence (Filing No. 53) in
support.

BACKGROUND
Kuehl’s action arises from his purchase of a life insurance policy. See Filing No.
33 - First Amended Complaint. On or about April 13, 2006, Jefferson Pilot Financial
Insurance Co. (Jefferson Pilot) issued an insurance policy for which Kuehl was the
owner and beneficiary. Id. ¶¶ 2-3. Jefferson Pilot subsequently merged with Lincoln
National in July 2007. Id. ¶ 3. Mike C. Kuehl was the insured under the policy. Id. ¶ 3.
Mike C. Kuehl died in February 2012. Id. ¶ 4. Kuehl made a claim under the policy
which Lincoln National, on behalf of Jefferson Pilot, denied alleging the policy lapsed for
non-payment of premiums. Id. ¶ 5. Kuehl alleges Lincoln National failed to properly
invoice Kuehl, resulting in inadvertent non-payment of the insurance premium. Id. ¶ 89. Kuehl also alleges Lincoln National failed to provide proper notice to Kuehl before
terminating the insurance policy. Id. ¶ 6. Based on these alleged facts, Kuehl asserts
claims for breach of contract, breach of the covenant of good faith and fair dealing, and
bad faith. Id. at 3-4.

On January 10, 2013, the court entered an Order Setting Final Schedule for
Progression of Case. See Filing No. 41 - Order. The court established the following
deadlines: summary judgment motions were to be filed no later than June 3, 2013;
Kuehl had until April 30, 2013, to disclose expert witnesses; Lincoln National had until
May 24, 2013, to disclose expert witnesses; and Kuehl had until June 12, 2013, to
disclose rebuttal expert witnesses. See id. ¶¶ 1, 3. In an Amended Order Setting Final
Schedule for Progression of Case, the court extended the deadline to submit summary
judgment motions to July 26, 2013. See Filing No. 44 - Amended Order ¶ 1. The court
also extended to deadline to disclose expert witnesses as follows: May 30, 2013, for
Kuehl; June 27, 2013, for Lincoln National; and July 12, 2013, for Kuehl’s rebuttal
experts. See id. ¶ 2.
Prior to the May 30, 2013, deadline, the parties discussed Kuehl’s use of an
expert witness. See Filing No. 47 - Brief p. 1. Kuehl’s counsel represented to Lincoln
National the expert could be deposed on June 19, 2013. Id. On May 13, 2013, one of
Kuehl’s counsel had an emergency appendectomy. Id. Kuehl did not disclose the
expert witness by May 30, 2013, and did not request an extension. See Filing No. 54 Response p. 1. Kuehl’s counsel believed Lincoln National’s counsel agreed to allow
Kuehl to designate the expert witness out of time. See Filing No. 47 - Brief p. 1-2. On
June 10, 2013, Kuehl’s counsel contacted Lincoln National’s counsel regarding
disclosure of an expert witness.

Id.

Lincoln National’s counsel informed Kuehl’s

counsel that Lincoln National presumed Kuehl decided not to use an expert witness.
See Filing No. 47 - Brief p. 1-2; Filing No. 54 - Response p. 1-2.
On June 11, 2013, Kuehl designated Mark Magistretti (Magistretti) as an expert.
See Filing No. 45 - Designation of Expert. Kuehl briefly explained Magistretti would
testify about how the United States Postal Service handles misaddressed mail. Id.
Also, on June 11, 2013, Kuehl filed the instant Motion for Leave to Designate Expert
Witness.

See Filing No. 46 - Kuehl’s Motion.

Kuehl seeks leave to designate

Magistretti out of time due to Kuehl’s counsel’s unforeseen emergency surgery and a
misunderstanding that Lincoln National agreed to extend the deadline to disclose an
expert witness until the deposition scheduled for June 19, 2013. See Filing No. 47 Brief p. 2.
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In response, Lincoln National filed its Motion to Strike Plaintiff’s Designation of
Expert Witness. See Filing No. 52 - Lincoln National’s Motion. Lincoln National argues
the designation is untimely and Kuehl did not provide a signed report describing
Magistretti’s opinions or other information required by Fed. R. Civ. P. 26(a)(2)(B). See
Filing No. 54 - Response p. 2-3. Lincoln National argues it cannot effectively defend its
interests without the report, including deposing Magistretti. Id. Lincoln National also
contends Kuehl had sufficient time prior to the deadline to request an extension. Id. If
Kuehl’s motion is granted, Lincoln National moves for an extension of Lincoln National’s
deadline to disclose an expert witness and the summary judgment deadline. Id. at 3-4.

ANALYSIS
“If a party fails to provide information or identify a witness as required by Rule
26(a) . . . , 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.” Fed. R. Civ. P. 37. Kuehl’s late disclosure was due to a medical emergency
and misunderstanding. There is no evidence Kuehl acted in bad faith. Additionally,
Lincoln National will not suffer undue prejudice. The court will extend the appropriate
deadlines to allow Lincoln National sufficient time to disclose its own expert witness and
file a summary judgment motion, if necessary. Therefore, the court will allow Kuehl’s
late disclosure of Magistretti. However, Kuehl’s disclosure is deficient in that it does not
fully comply with Fed. R. Civ. P. 26(a)(2)(B). Accordingly,

IT IS ORDERED:
1.

The plaintiff’s Motion for Leave to Designate Expert Witness (Filing No.

46) is granted. The plaintiff shall have until July 15, 2013, to provide a complete report
as required by Fed. R. Civ. P. 26(a)(2)(B).
2.

The defendant’s Motion to Strike Plaintiff’s Designation of Expert Witness

(Filing No. 52) is granted in part and denied in part. The defendant shall have until
August 7, 2013, to disclose an expert witness and provide a report as required by Fed.
R. Civ. P. 26(a)(2). The motion is denied in all other respects.

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3.

Motions for summary judgment shall be filed not later than August 14,

2013. All other deadlines remain as scheduled. See Filing Nos. 41 and 44.

Dated this 8th day of July, 2013.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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