Reliastar Life Insurance Company v. Laschkewitsch
ORDER GRANTING 81 Plaintiff's Motion to Exclude Defendant's Expert, DENYING 98 Defendant's Motion for Order to Show Cause, GRANTING 106 Plaintiff's Motion to Seal, and GRANTING 117 Plaintiffs Motion to Seal. Signed by US District Judge Terrence W. Boyle on 4/13/2014. Copy mailed to pro se defendant via US Mail. (Fisher, M.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
RELIASTAR LIFE INSURANCE COMPANY,
JOHN B. LASCHKEWITSCH,
This matter is before the Court on plaintiffs motion to exclude defendant's expert [DE
81], defendant's motion to appear and show cause [DE 98], and plaintiffs second and third
motions to seal [DE 106, 117]. For the following reasons, the motion to exclude is GRANTED.
The motion to appear and show cause is DENIED, and the motions to seal are GRANTED.
Reliastar Life Insurance Company ("Reliastar") filed a complaint against defendant on
March 22, 2013 which seeks a declaratory judgment that the life insurance policy it issued to
defendant is null, void, and rescinded ab initio due to the allegedly fraudulent, willfully false,
and/or material misrepresentations and omissions that defendant and the insured made in
applying for the policy. The complaint also brings a claim for breach of contract and the duty of
good faith and fair dealing, and a claim for fraud.
On February 14, 2014, plaintiff filed a motion for summary judgment. [DE 83]. On
February 18, 2014, defendant filed a motion for summary judgment. [DE 89] On February 14,
2014, plaintiff filed a motion to exclude defendant's expert witness, Daryll Martin. [DE 81]. On
March 6, 2014, defendant filed a motion for Michael Patterson to appear and show cause for
failure to comply with defendant's subpoena. [DE 98]. On March 11, 2014 and on March 19,
2014 plaintiff filed its second [DE 106] and third [DE 117] motions to seal respectively.
MOTION TO EXCLUDE EXPERT WITNESS.
Plaintiff argues that Mr. Martin should be excluded as an expert witness because he is
unqualified to testify how a reasonable underwriter would have underwritten the application for
insurance and that his waiver opinion is unreliable and unhelpful. Federal Rule of Evidence 702
provides that "if the expert's scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue," "[a] witness who is
qualified as an expert by knowledge, skill, experience, training, or education may testify in the
form of an opinion or otherwise." FED. R. Evm. 702. The Court serves as the gatekeeper for all
expert testimony to make sure it is based on sound, reliable theory and does not constitute rank
speculation. Kumho Tire Co., Ltd. v. Carmichael., 526 U.S. 137, 141 (1999). The expert
testimony is considered reliable only if the expert is qualified to render the opinion and the
expert's underlying methodology is scientifically valid. Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579, 589-90 (1993). The expert's testimony is relevant only if the expert properly
applies that methodology or reasoning to the facts in issue. !d. at 591-93. The expert must
explain how and why he has reached the conclusion being proffered and must have as a basis
more than a subjective belief or speculation. Kumho Tire, 526 U.S. at 152.
Here, defendant has failed to meet his burden to demonstrate that Martin is qualified to
provide testimony on the appropriate underwriting procedures that allegedly should have been
followed in this case. It is clear that Martin has no underwriting experience, and that his
experience in the insurance industry as a broker and attorney cannot make him an expert in
underwriting. See Hardin v. Ski Venture, Inc., 50 F.3d 1291, 1296 (4th Cir. 1995) (experience in
ski safety policies and testimony in other ski accident cases did not qualifiy expert to opine about
snowmaking machine sagety); Thomas J Kline, Inc. v. Lorillard, Inc., 878 F.2d 791, 799-800
(4th Cir. 1989) (expert with MBA and experience analyzing companies' business health not
qualified to give antitrust testimony where she had no specific education or experience in
antitrust matters); Estate of Richard Myers v. Wal-mart Stores, Inc., 2011 WL 1366459, *3
(E.D.N.C. April 11, 2011) (architect with no specific experience in parking lot design not
qualified to offer expert testimony on parking lot design). Similar to these cases, Martin's
insurance industry experience without specific experience in underwriting does not qualify him
to offer expert testimony on underwriting. This Court finds that Martin is not qualified as an
expert on underwriting and cannot testify as such.
Martin also offers an opinion that Reliastar waived its right to challenge the policy based
on defendant's fraud. There is nothing about this issue of waiver for which Martin's testimony is
needed. What constitutes waiver under North Carolina law is a legal issue for the Court to
instruct the jury on. Further, whether a waiver occurred here is not a complex issue and does not
require expert testimony for a jury to be able to understand. Martin has no more expertise on
waiver than lay jurors and his testimony would not be helpful to a jury and his testimony on
waiver is therefore excluded.
MOTION TO APPEAR AND SHOW CAUSE.
Defendant filed a motion for Michael G. Patterson to appear and show cause for failure to
comply with defendant's subpoena. Defendant alleges that Reliastar produced its contract with
Advisors Financial Group ("AFG"), a non-party to this suit, without producing an attached errors
and omissions coverage and is thus in violation of this Court's January 6, 2014 order compelling
the production of its contract with AFG. Defendant further alleges that he properly served a
subpoena on Mr. Patterson, the President of AFG, which requested the errors and omissions
coverage. AFG notes that it timely objected to the subpoena and also responded that it does not
have the requested document. Defendant argues that he properly served AFG through certified
mail and that its claim that it does not possess the document must be a lie as it is alleged to be a
coverage that must be renewed annually. This Court finds no cause to doubt the veracity of
AFG's statement and also notes that service was not proper here. "Any person who is at least 18
years old and not a party may serve a summons and complaint." FED. R. CIV. P. 4(c). Although
service by mail is allowed, there is still a requirement for who may affect service. "It is well
established that [Rule 4(c)(2)] prohibits service of process by a party in all forms. Thus a
plaintiff ... may not effectuate service by sending a copy of the summons and complaint through
certified mail." Wilson v. SunTrust Bank, Inc., 2011 WL 1706763, *1 (W.D.N.C. May 4, 2011).
Therefore, defendant's attempt at properly serving the subpoena on AFG is void. Because
defendant failed to properly serve his subpoena, his motion to appear and show cause is denied.
MOTIONS TO SEAL.
Pursuant to Local Rule 26(a)(1), the Court grants plaintiffs second and third motions to
file documents under seal. DE [104; 105; 114; and 116] 1 are sealed as they contain medical
information or records or testimony about the insured's health.
These documents include Exhibits W, X, Y, BB, DD, EE, FF, and GG to the declarations of Hutson Smelley as
well as the memorandum in opposition to defendant's motion for summary judgment and the reply memorandum in
support of plaintiffs motion for summary judgment.
For the foregoing reasons, the motion to exclude is GRANTED. The motion to appear
and show cause is DENIED, and the motions to seal are GRANTED.
day of April, 2014.
RRENCE W. BOYLE
UNITED STATES DISTRICT JUDG
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