Butler v. American Heritage Life Insurance Company et al

Filing 133

MEMORANDUM OPINION AND ORDER - DENYING 129 MOTION to Strike Plaintiff's Expert Witness and Reports filed by American Heritage Life Insurance Company, Allstate Insurance Company. It is further ORDERED that Plaintiff should prod uce to Defendants the documents thatDr. Reynolds relied upon when reaching her opinion within ten days of this Order, or notify the Court that he has fully complied with his disclosure requirements. Signed by Judge Amos L. Mazzant, III on 2/23/2016. (baf, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

SCOTT BUTLER
v.
AMERICAN HERITAGE LIFE
INSURANCE COMPANY, A subsidiary
of THE ALLSTATE CORPORATION,
and ALLSTATE INSURANCE COMPANY

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CASE NO. 4:13-CV-199
Judge Mazzant

MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendants American Heritage Life Insurance Company and
Allstate Insurance Company’s Motion to Strike Plaintiff’s Expert Witness (Dkt. #129). After
reviewing the relevant pleadings, the Court finds that the motion should be denied.
BACKGROUND
The above-referenced case consists of a breach of contract claim, a wrongful termination
claim, and a fraud claim. Plaintiff Scott Butler (“Plaintiff” or “Butler”) was an employee of
Allstate Insurance Company (“Allstate”), where he served as a Field Vice President in the
Benefits department (Dkt. #40 at ¶ 6). In 2008, his direct supervisor became Wayne Watkins
(“Watkins”) (Dkt. #40 at ¶ 8). Plaintiff believed that Watkins was violating the ethical rules of
Allstate, when he learned that Watkins was carrying on an illicit relationship with a married
woman who also had an insurance benefits business in New Orleans (Dkt. #40 at ¶¶ 14, 16).
After discussing Watkins’ alleged ethical violation with representatives of Allstate, Plaintiff was
terminated on or about September 1, 2012, when Human Resources informed him that his
production had not met the goals that Watkins had set for him.
Plaintiff’s deadline to disclose experts was December 12, 2014 (Dkt. #42). On December
12, 2014, Plaintiff submitted his Rule 26(a)(2) Disclosure of Expert Testimony designating Dr.
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Helen Reynolds (“Reynolds”), as an expert to testify on Plaintiff’s loss of income and benefits
and Plaintiff’s past and future damages (Dkt. #129-4). On February 3, 2015, Plaintiff produced
an expert report written by Reynolds (Dkt. #129-5).
On January 23, 2015, Defendants filed their Motion to Strike Plaintiff’s Disclosure (Dkt.
#48). On February 6, 2015, Plaintiff filed his response (Dkt. #52). On February 5, 2015, the
parties filed their Agreed Motion to Extend Scheduling Order Deadlines (Dkt. #51), which the
Court granted on April 17, 2015 (Dkt. #53). The agreed motion extended Plaintiff’s disclosure
of expert testimony to April 10, 2015; therefore, on May 7, 2015, the Court denied as moot
Defendant’s Motion to Strike, subject to refiling (Dkt. #56). On January 25, 2016, Plaintiff
produced an updated expert report to Defendants from Reynolds (Dkt. #129-8).
On February 8, 2016, Defendants filed their Motion to Strike Plaintiff’s Expert Witness
(Dkt. #129). On February 18, 2016, Plaintiff filed his response (Dkt. #132).
LEGAL STANDARD
Federal Rule of Evidence 702 provides for the admission of expert testimony that assists
the trier of fact to understand the evidence or to determine a fact in issue. FED. R. EVID. 702. In
Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court instructed courts to function
as gatekeepers, and determine whether expert testimony should be presented to the jury. 509
U.S. 579, 590-93 (1993). Courts act as gatekeepers of expert testimony “to make certain that an
expert, whether basing testimony upon professional studies or personal experience, employs in
the courtroom the same level of intellectual rigor that characterizes the practice of an expert in
the relevant field.” Kuhmo Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 152 (1999).
The party offering the expert’s testimony has the burden to prove by a preponderance of
the evidence that: (1) the expert is qualified; (2) the testimony is relevant to an issue in the case;

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and (3) the testimony is reliable. Daubert, 509 U.S. at 590-91. A proffered expert witness is
qualified to testify by virtue of his or her “knowledge, skill, experience, training, or education.”
FED. R. EVID. 702. Moreover, in order to be admissible, expert testimony must be “not only
relevant, but reliable.” Daubert, 509 U.S. at 589. “This gate-keeping obligation applies to all
types of expert testimony, not just scientific testimony.” Pipitone v. Biomatrix, Inc., 288 F.3d
239, 244 (5th Cir. 2002) (citing Kuhmo, 526 U.S. at 147).
In deciding whether to admit or exclude expert testimony, the Court should consider
numerous factors. See Daubert, 509 U.S. at 594. In Daubert, the Supreme Court offered the
following, non-exclusive list of factors that courts may use when evaluating the reliability of
expert testimony: (1) whether the expert’s theory or technique can be or has been tested; (2)
whether the theory or technique has been subjected to peer review and publication; (3) the
known or potential rate of error of the challenged method; and (4) whether the theory or
technique is generally accepted in the relevant scientific community. Id. at 593-94; Pipitone,
288 F.3d at 244. When evaluating Daubert challenges, courts focus “on [the experts’] principles
and methodology, not on the conclusions that [the experts] generate.” Daubert, 509 U.S. at 59495.
The Daubert factors are not “a definitive checklist or test.” Daubert, 509 U.S. at 593. As
the Court has emphasized, the Daubert framework is “a flexible one.” Id. at 594. The test for
determining reliability can adapt to the particular circumstances underlying the testimony at
issue. Kuhmo, 526 U.S. at 151. Accordingly, the decision to allow or exclude experts from
testifying under Daubert is committed to the sound discretion of the district court. St. Martin v.
Mobil Exploration & Producing U.S. Inc., 224 F.3d 402, 405 (5th Cir. 2000) (citation omitted).

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Rule 403 dictates that a court “may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following:

unfair prejudice,

confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” FED. R. EVID. 403. Furthermore, the Fifth Circuit has consistently held
that an expert may not render conclusions of law. See Snap-Drape, Inc. v. Comm’r of Internal
Revenue, 98 F.3d 194, 198 (5th Cir. 1996); see also Goodman v. Harris Cnty., 571 F.3d 388, 399
(5th Cir. 2009) (“an expert may never render conclusions of law.”); Owen v. Kerr-McGee Corp.,
698 F.2d 236, 240 (5th Cir. 1983) (“allowing an expert to give his opinion on legal conclusions
to be drawn from the evidence both invades the court’s province and is irrelevant.”)
Additionally, Federal Rule of Civil Procedure 26(a)(2) states that parties must disclose to
each other the identity of any witness it may use at trial to present evidence under Federal Rules
of Evidence 702, 703, or 705 at the times and in sequence that the court orders. See FED. R. CIV.
P. 26(a)(2)(D). The disclosure of the expert witness must be accompanied by a written report
that contains: “(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 [their opinion]; (iii)
any exhibits that will be used to summarize or support [their opinion]; (iv) the witness’s
qualifications, including a list of all publications authored in the previous 10 years; (v) a list of
all other cases in which, during the previous 4 years, the witness testified as an expert at trial or
by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in
the case.” FED. R. CIV. P. 26(a)(2)(B). If a party fails to provide the information or identify a
witness, as required by Rule 26, the party is precluded from using the information or the witness
to supply evidence on a motion, at a hearing, or at a trial, unless the party can demonstrate that
the failure was substantially justified or is harmless. See FED. R. CIV. P. 37(c)(1).

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ANALYSIS1
Defendants assert that Plaintiff’s expert, Dr. Helen Reynolds, should be stricken because
“[b]oth of Dr. Reynolds’ expert reports failed to comply with all of the requirements set forth in
Rule 26 of the Federal Rules of Civil Procedure.” (Dkt. #129 at p. 1). Specifically, Defendants
allege that “[n]either report was accompanied with all of the data and/or information relied upon
or considered by Dr. Reynolds in writing her reports.” (Dkt. #129 at p. 1). It does not appear
that Defendants are challenging Reynolds’ credentials under Federal Rule of Evidence 702;
therefore, the Court will only address Defendants’ Federal Rule of Civil Procedure 26 argument.
The Court finds that Plaintiff has complied with Rule 26 of the Federal Rules of Civil
Procedure.

The expert report and supplemental report give complete statements of Dr.

Reynolds’ opinion, the witness’ qualifications, a complete list of all of the cases in which Dr.
Reynolds has testified in the previous four years, and a statement regarding compensation. The
Court also finds that Dr. Reynolds’ expert report and supplemental expert report include the facts
or data used to reach her opinion in the case, as well as the exhibits that she relied upon.
However, to the extent that those documents have not been produced to Defendants, Plaintiff
should produce those documents to Defendants within ten days of this Order.
CONCLUSION
It is therefore ORDERED that Defendants American Heritage Life Insurance Company
and Allstate Insurance Company’s Motion to Strike Plaintiff’s Expert Witness (Dkt. #129) is
hereby DENIED.

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As a preliminary matter, in his response, Plaintiff asserts that Defendants have not timely filed their motion to
strike, and therefore, the motion should not be considered (Dkt. #132 at p. 2). Although the Court will consider
Defendants’ motion to strike, the parties should note that they are required to comply with the Federal Rules of Civil
Procedures, the local rules, and the Court’s Orders.

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.

It is further ORDERED that Plaintiff should produce to Defendants the documents that
Dr. Reynolds relied upon when reaching her opinion within ten days of this Order, or notify the
Court that he has fully complied with his disclosure requirements.
SIGNED this 23rd day of February, 2016.

___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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