BANCROFT LIFE & CASUALTY ICC, LTD v. INTERCONTINENTAL MANAGEMENT LTD. et al

Filing 386

MEMORANDUM ORDER denying 381 Motion to Dismiss. Signed by Judge Arthur J. Schwab on 11/8/2012. (lmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
BANCROFT LIFE & CASUALTY ICC,
LTD,
10cv0704
ELECTRONICALLY FILED

Plaintiff,
v.
INTERCONTINENTAL MANAGEMENT,
LTD., d/b/a INTERCONTINENTAL
CAPTIVE MANAGEMENT COMPANY,
LTD, et al,
Defendants.

MEMORANDUM ORDER
Currently pending before this Court is Defendant John Patton’s and Defendant Nigel
Bailey’s Motion to Dismiss the Second Amended Complaint.1 Doc. No. 381. Plaintiff filed a
Memorandum in Opposition to this Motion. Doc. No. 385. The matter is now ripe for
adjudication.2 For the reasons set forth below, the Motion to Dismiss will be denied.
I. Discussion
Defendants Patton and Bailey argue that all claims set forth in the Second Amended
Complaint against them must be dismissed for the following reasons: (1) Plaintiff failed to file an
expert report or reports as required by this Court’s Amended Case Management Order (doc. no.
335); (2) without expert reports, Plaintiff cannot prove its claims against either Defendant Patton
or Bailey; (3) Plaintiff failed to produce any documentation to support its allegations against

1

Although Defendants styled this Motion as a Motion to Dismiss (presumably in accordance with
Fed.R.Civ.P. 12), Defendants proffered no law that would support dismissal under that Rule.
2

Because the Court has prepared this Memorandum Order primarily for the benefit of the parties, no
lengthy recitation of the underlying facts needs to be set forth.

Defendants Patton and Bailey; and (4) without documentation to support its claims against
Defendants Patton and Bailey, Plaintiff cannot prove its case. See doc. no. 381.
Plaintiff’s Memorandum in Opposition to Defendants’ Motion to Dismiss counters that
no expert testimony is necessary to prove its case against Defendants Patton and Bailey given the
nature of the claims asserted against these two Defendants. Plaintiff notes that the Second
Amended Complaint asserts a cause of action for fraud, tortious interference with existing
contractual relationships, and tortious interference with prospective economic advantage.
Plaintiff also contends that it was not required to respond to Defendants’ Request for Production
of Documents because Defendants’ Request fell outside the discovery period. More importantly,
however, Plaintiff contends that documents which support its claims against Defendants Patton
and Bailey were produced during the 2010 preliminary injunction hearing and on October 26,
2012.
Neither the Defendants nor Plaintiff cites to any case law in support of their respective
positions.
A. Expert Reports
The Court begins by noting that the Amended Case Management Order (doc. no. 335) did
not require any party to file an expert report, it simply established the deadline for the filing of
any expert report(s), should a party deem expert evidence to be necessary to prove its claims
and/or counterclaims or assist in its defense.
Next, Federal Rule of Evidence 702 governs the admission of expert testimony in federal
court. The Rule has several major requirements: (1) the proffered witness must be a qualified
expert; (2) the expert must testify about matters requiring scientific, technical, or other
specialized knowledge; (3) the expert’s testimony must be based on sufficient facts or data and

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be the product of reliable principles and methods; and (4) the expert’s testimony must actually
assist the jury, by providing it with relevant information, necessary to deciding a fact in dispute.
See F.R.E. 702.
Whether expert testimony is necessary in any given case is fact driven. As noted by the
United States Court of Appeals for the Tenth Circuit, “[t]here is no fixed or general rule that
requires expert testimony. However, the rule does dictate that where the topic requires special
experience, only the testimony of a person of that special experience will be received.” Randolph
v. Collectramatic, Inc., 590 F.2d 844, 848 (10th Cir. 1979), citing, Wigmore on Evidence, 3rd
Ed., Vol. II, §§ 555, 556; Wigmore on Evidence, 3rd Ed., Vol. VII, § 2090.
Turning to the instant matter, although Defendants Patton and Bailey argue that each of
the claims asserted against them require expert testimony, they offer no further information.
Defendants have failed to assert whether they are contending that expert testimony is needed to
assist a jury determine the extent (if any) of damages with respect to one, two, or all three of the
claims asserted against them. Similarly, Defendants have failed to explain to this Court whether
experts are necessary to assist the jury in understanding the concept “prospective economic
advantage,” and/or how damages can flow from this, and/or how to calculate such damages.
Thus, because Defendants failed to identify which element(s) of which tort(s) alleged
against Defendants Patton and Bailey cannot be met due to the lack of expert testimony, this
Court is constrained to deny Defendants’ Motion to Dismiss. The Court’s decision in this regard
does not foreclose Defendants from re-asserting its position (i.e., Plaintiff’s decision to not
present expert evidence with respect to the torts asserted against Defendants Patton and Bailey is
fatal to one or more of its claims against them) at time of trial under Fed.R.Civ.P. 50.

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B. Documents
The next argument raised by Defendants suggests that Plaintiff has produced no
documentation to support one or more of its claims against Defendants Patton and Bailey.
Plaintiff disagrees and contends that the documents that will be used to prove its case against
Defendants Patton and Bailey were produced in 2010 and additional documents were produced
in 2012. Accordingly, at this juncture, the Court is constrained to deny the Motion to Dismiss,
but this decision does not foreclose Defendants from re-asserting their position at time of trial
under Fed.R.Civ.P. 50.
II. Conclusion
Defendants Motion to Dismiss (doc. no. 381) will be denied.

ORDER OF COURT
AND NOW, this 8th day of November, 2012, the Court hereby DENIES Defendants’
Motion to Dismiss (doc. no. 381).
s/ Arthur J. Schwab
Arthur J. Schwab
United States District Judge
cc:

All Registered ECF Counsel

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