Igartua v. Farmers Insurance Exchange

Filing 56

ORDER Denying Plaintiff's 44 Motion to Reconsider. Signed by Magistrate Judge Carl W. Hoffman on 3/2/2017. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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RICHARD IGUARTA,

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Plaintiff,
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v.
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MID-CENTURY INSURANCE COMPANY,
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Defendant.
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_______________________________________ )

Case No. 2:16-cv-00849-JAD-CWH

ORDER

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Presently before the Court is Plaintiff Richard Iguarta’s motion to reconsider (ECF No. 44),

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filed on January 12, 2017. Defendant Mid-Century Insurance Company filed a response (ECF No.

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49) on January 26, 2017. Plaintiff filed a reply (ECF No. 52) on February 2, 2017.

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Plaintiff requests that the Court reconsider its order (ECF No. 33) granting in part and

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denying in part Plaintiff’s motion to extend discovery (ECF No. 19) and Defendant’s motion in

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limine (ECF No. 23). Plaintiff argues that at the hearing held on December 13, 2016, Defendant

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misrepresented certain facts of the case, and that the Court’s order was based on those

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misrepresentations. Defendant acknowledges that it misstated certain facts, but disagrees as to the

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scope and impact of those statements.

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I.

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Introduction
At the hearing held on the parties’ motions December 13, 2016, the Court heard argument

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regarding whether Plaintiff’s treating physicians (Dr. Shah, Dr. Kaplan, Dr. Dunn, Dr. Grover, Dr.

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Prater, and Dr. Rosler) would be allowed to present evidence at trial of causation of Plaintiff’s

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injuries, the need for future care, or the reasonableness and necessity of treatment rendered. Plaintiff

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did not timely disclose these physicians as non-retained experts pursuant to Fed. R. Civ. P.

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26(a)(2)(C), so Defendant argued that they should not be allowed to present any expert testimony,

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only opinions formed during treatment. Defendant represented that Plaintiff did not disclose any

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opinions formed by the treating physicians regarding causation, the need for future medical care, or

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the reasonableness and necessity of treatment rendered, and so any statements from the doctors on

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such topics would constitute expert testimony. Plaintiff did not contradict this assertion at the

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hearing. Defendant also represented that it would be prejudiced if the Court were to reopen

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discovery or to allow the physicians to testify as experts.

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After hearing arguments from the parties, the Court granted Defendant’s motion in limine in

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part, holding that Plaintiff’s failure to comply with Rule 26 disclosure requirements was not

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substantially justified or harmless, and was prejudicial to Defendant. The Court ordered that the

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treating physicians would be limited to providing percipient evidence of their treatment, not to

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include testimony regarding causation, future treatment, or reasonableness of treatment. The Court

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also denied, in part, Plaintiff’s motion to reopen discovery, finding that Plaintiff had not shown

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diligence in conducting discovery. Plaintiff was, however, given leave to conduct depositions of

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Defendant’s expert witnesses. Plaintiff now moves the Court to reconsider its order on both

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motions, based on evidence of the misrepresentations made by Defendant.

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II.

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Analysis
While motions for reconsideration are disfavored, a motion for reconsideration may be

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granted if (1) there is newly discovered evidence that was not available when the original motion or

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response was filed, (2) the court committed clear error or the initial decision was manifestly unjust,

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or (3) if there is an intervening change in controlling law. The party seeking reconsideration is

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required to state with particularity the points of law or fact that the court has overlooked or

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misunderstood. Local Rule 59-1(a). Plaintiff’s motion is based on his claim that Defendant

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misrepresented the prejudice it would suffer were the Court to reopen discovery, and the scope of the

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opinions provided by the treating physicians, leading the Court to misunderstand the true facts of the

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case.

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A.

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First, the Court will address Plaintiff’s assertion that Defendant misrepresented the prejudice

Misrepresentation of prejudice

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it would suffer were the Court to reopen discovery, and that this misrepresentation constitutes a

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misunderstanding of law or fact requiring reconsideration. At the hearing, Defendant claimed that

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Plaintiff failed to timely disclose a post-surgical computation of future damages, which would have

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been a “major predicate” for Defendant’s decision whether to conduct an independent medical

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examination (IME). Plaintiff argues that, regardless of his inaction, Defendant had sufficient reason

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to conduct an IME for three reasons: (1) it had been informed of future damages in Plaintiff’s

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original demand letter, (2) reports from the treating physicians indicated that they believed Plaintiff

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would need further care, and (3) its claims-representatives had previously recommended conducting

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an IME. Plaintiff concludes that in light of these factors, Defendant’s misrepresented itself by

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claiming that Plaintiff’s failure to provide a timely computation of future damages was a factor in

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their decision not to conduct an IME. Further, according to Plaintiff, since the failure to disclose a

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computation of post-surgical damages was not truly a factor in Defendant’s decision, Defendant

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misrepresented itself by claiming prejudice from Plaintiff’s actions.

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The Court acknowledges that the factors articulated by Plaintiff could have entered into

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Defendant’s calculus as to whether to conduct an IME, but will not conclude that Defendant

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misrepresented itself by claiming any particular factor to be a “major predicate.” The Court therefore

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finds no misrepresentation of fact as to the prejudice Defendant would suffer were discovery

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reopened. Therefore, that aspect of the decision will not be reconsidered.

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B.

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Next, the Court will consider Defendant’s representations as to the opinions provided by

Misrepresentation of the treating physicians

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Plaintiff’s treating physicians. In its response, Defendant acknowledges that it was mistaken when it

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argued, at the hearing, that none of the treating physicians offered any opinions as to causation.

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According to Defendant, three of the treating physicians, Dr. Kaplan, Dr. Grover, and Dr. Dunn, did

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provide their opinions as to causation. Defendant is willing to stipulate to these doctors testifying

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regarding the causation opinions contained within their treatment records. Defendant does not

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address Plaintiff’s assertion that one physician, Dr. Shah, gave his opinion as to causation. However,

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Defendant disagrees that either Dr. Prater or Dr. Rosler provided evidence of causation. Neither do

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the parties agree as to whether any of the treating physicians offered their opinions as to future

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treatment or the reasonableness of treatment rendered.

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Upon review, the substance of this Court’s order was that, because of Plaintiff’s failure to

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timely disclose the treating physicians as experts, they would be limited to providing testimony of

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what they saw and what they did. Due to Defendant’s misrepresentations, the Court did not

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understand the full scope of the treatment documented by Plaintiff, and suggested that they could not

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testify as to causation. It now appears that some of the treating physicians did in fact provide

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opinions of causation during the course of treatment. The parties agree that Dr. Kaplan, Dr. Grover,

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and Dr. Dunn provided their opinions as to causation, so the Court will allow them to testify on that

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issue.

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Plaintiff also points to Dr. Shah’s Internal Medicine Evaluation (Exh. 5, p. 2 (ECF No. 44)),

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in which Dr. Shah states that, in his opinion, Plaintiff’s injuries are the result of the motor vehicle

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accident that occurred on August 17, 2011. It thus appears that during the course of his treatment,

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Dr. Shah formed an opinion on causation. The Court will allow him to testify as to that opinion.

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Plaintiff further points to Dr. Prater’s report of his initial consultation (Exh. 6, p. 6 (ECF No.

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44)), which notes that Plaintiff developed symptoms of injury within three days after the August,

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2011 accident. Similarly, Dr. Rosler notes that Plaintiff experienced back and neck pain after a

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motor vehicle accident. (Exh. 9, p. 2 (ECF No. 44)). However, noting that one thing occurred

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shortly after another is not an assertion of a causal link, merely a temporal sequence. Plaintiff does

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not provide record of any opinions as to causation of the injuries sustained by Plaintiff from either

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Dr. Prater or Dr. Rosler. Therefore, they may not testify on this issue.

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Similarly, the parties dispute whether the physicians provided their opinions on the need for

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future medical care, or the reasonableness and necessity of treatment rendered. Plaintiff points to a

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number of statements in the record indicating that the treating physicians believed, at the time of

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treatment, that further medical care would be necessary. The physicians may therefore testify as to

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these opinions as they were held at the time of treatment. The Court does not find the treating

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physicians’ opinion on the reasonableness and necessity of treatment rendered in the records cited by

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either party. However, the same analysis applies for this issue: the physicians may testify as to their

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opinions of the reasonableness and necessity of the treatment rendered as they were held at the time

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of treatment.

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III.

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Conclusion
At the hearing on December 13, 2016, the Court ordered that the treating physicians would be

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prevented from providing expert testimony. This means that they may testify as to what they saw

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and what they did. At the hearing, Defendants misrepresented the actual scope of what the

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physicians saw and did during treatment. Rectifying that error does not require reconsideration of

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the Court’s order, merely clarification of its scope. The Court holds that, consistent with its order at

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the hearing on December 13, 2016, Plaintiff’s treating physicians may testify as to their actions and

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opinions formed at the time of treatment, as contained in the records disclosed by Plaintiff before the

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close of discovery.
IT IS THEREFORE ORDERED that Plaintiff’s motion to reconsider (ECF No. 44) is
DENIED.

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DATED: March 2, 2017.

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_________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

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