Transamerica Life Insurance Company v. Devinder Bhatia, As Independent Executor of the Estate of Taylor Pickett

Filing 25

MEMORANDUM AND ORDER denying 18 Motion to Strike and granting 19 Motion for Extension of Time. Defendant to supplement expert report by 1/11/2013; Pltf Expert Report due by 2/11/2013; Discovery due by 3/29/2013; Motions due by 4/19/2013; Joint Pretrial Order due by 6/28/2013; Docket Call set for 7/8/2013 at 04:00 PM in Courtroom 9F before Judge Nancy F. Atlas).(Signed by Judge Nancy F. Atlas) Parties notified.(TDR)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
TRANSAMERICA LIFE INSURANCE §
COMPANY,
§
Plaintiff,
§
§
v.
§
§
DEVINDER BHATIA, Executor of the §
Estate of Taylor Pickett,
§
Defendant.
§

CIVIL ACTION NO. H-11-3701

MEMORANDUM AND ORDER
This life insurance case is before the Court on Plaintiff Transamerica Life
Insurance Company’s Motion to Strike Defendant/Counter-Plaintiff’s Designation of
Experts (“Motion to Strike”) [Doc. # 18] and Defendant/Counter-Plaintiff Devinder
Bhatia’s Motion to Extend Time [Doc. # 19].1 Having reviewed the full record and
applied governing legal authorities, the Court denies the Motion to Strike and grants
the Motion to Extend Time.
I.

BACKGROUND
Many of the facts in this case are undisputed. Transamerica Life Insurance

Company (“Transamerica”) issued a life insurance policy on the life of Taylor Pickett

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Defendant filed a Response [Doc. # 21] to Plaintiff’s Motion to Strike, and Plaintiff
filed a Reply [Doc. # 24]. Plaintiff filed a Response [Doc. # 20] to Defendant’s
Motion to Extend Time, and Defendant filed a Reply [Doc. # 22].

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effective August 26, 2008. Pickett failed to pay the quarterly premium due on
December 9, 2010, causing the insurance policy to lapse. Pickett paid the delinquent
quarterly premium on February 7, 2011. Transamerica informed Pickett he was
required to seek reinstatement of the life insurance policy, and Pickett began the
reinstatement process on March 2, 2011. Pickett died in an airplane crash on April 10,
2011. Bhatia, as Independent Executor of the Estate of Taylor Pickett, filed a claim
for the life insurance proceeds. Transamerica denied the claim, asserting that the life
insurance policy had lapsed and had not been reinstated at the time of Pickett’s death.
Transamerica filed this declaratory judgment action, seeking a declaration that
it owes no benefits under the life insurance policy. Defendant filed a counterclaim,
asserting causes of action for breach of contract and extra-contractual claims. In the
counterclaim, Defendant asserts that Transamerica’s acceptance of the premium
payment on February 7, 2011, operated to reinstate coverage under the life insurance
policy.
On April 10, 2012, the Court entered a Docket Control Order [Doc. # 13] that
established a deadline for “Expert Witnesses for Plaintiff/Counter-Plaintiff” of
October 12, 2012, and a deadline for “Expert Witnesses for Defendant/CounterDefendant” of November 12, 2012. Defendant Bhatia designated and provided a

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report by Thomas Veitch on November 12, 2012, its deadline as Defendant but one
month after its deadline as Counter-Plaintiff.
II.

ANALYSIS
Federal Rule of Civil Procedure 16(b)(4) provides the standard for requests to

amend after a scheduling order’s deadline has expired. See E.E.O.C. v. Serv. Temps
Inc., 679 F.3d 323, 333-34 (5th Cir. 2012); Marathon Financial Ins., Inc. v Ford
Motor Co., 591 F.3d 458, 470 (5th Cir. 2009); Fahim v. Marriott Hotel Servs., Inc.,
551 F.3d 344, 348 (5th Cir. 2008). “Rule 16(b) provides that once a scheduling order
has been entered, it ‘may be modified only for good cause and with the judge’s
consent.’” Marathon, 591 F.3d at 470 (quoting FED. R. CIV. P. 16(b)). To determine
whether the moving party has established good cause, the Court considers the
following four factors: “(1) the explanation for the failure to timely move for leave
to amend; (2) the importance of the amendment; (3) potential prejudice in allowing
the amendment; and (4) the availability of a continuance to cure such prejudice.” Id.
(quoting Sw. Bell Tel. Co. v. City of El Paso, 346 F.3d 541, 546 (5th Cir. 2003)); see
also Serv. Temp, 679 F.3d at 334.
The Court finds that Defendant has established good cause in support of its
request to deem timely the expert designation on November 12, 2012. Defendant
explains that the October 12, 2012, date for expert designations was incorrectly

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entered into counsel’s computer calendaring system as the deadline for Plaintiff’s
expert rather than the deadline for expert witnesses for Counter-Plaintiff also. The
deadline for Defendant’s expert designation was entered only as November 12, 2012.
The extension of time to allow Defendant’s expert designation to be considered
timely is important to Defendant’s counterclaim. Specifically, the expert’s opinions
could provide assistance to the fact finder in determining whether acceptance of the
February 2011 payment constituted a waiver of the lapse caused by the missed
payment or otherwise restored the life insurance policy. The expert’s opinions could
also assist the fact finder in determining whether Transamerica followed its own
practices and procedures or acted unreasonably.
Plaintiff argues that allowing Defendant’s untimely designation of its expert
will cause prejudice because it deprives Plaintiff of the opportunity to designate an
expert in response to Defendant’s expert, and will delay the final resolution of this
dispute. To the extent Plaintiff has shown prejudice, it can be adequately addressed
by providing a new schedule that allows Plaintiff ample time to designate an expert
and provide a report, yet extends the docket call deadline by only three weeks.
III.

CONCLUSION AND ORDER
Defendant has shown good cause for extending its expert designation deadline,

and Plaintiff has failed to demonstrate that the Court should strike Defendant’s expert.

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As a result, Defendant’s expert designation is deemed timely, subject to providing
updated information and identified supporting materials, and will not be stricken. It
is hereby
ORDERED that Plaintiff’s Motion to Strike [Doc. # 18] is DENIED. It is
further
ORDERED that Defendant’s Motion to Extend Time [Doc. # 19] is
GRANTED. By January 11, 2013, Veitch will provide to Plaintiff a copy of all
materials listed in Exhibit A to his report and an updated Exhibit C listing all cases in
which Veitch has testified at trial or by deposition in 2012. It is further
ORDERED that by February 11, 2013, Plaintiff may identify and provide a
report from its own expert. It is further
ORDERED that the following deadlines apply:
Discovery Deadline

March 29, 2013

Motions Deadline

April 19, 2013

Joint Pretrial Order Deadline

June 28, 2013

Docket Call (4:00 p.m.)

July 8, 2013

SIGNED at Houston, Texas, this 17th day of December, 2012.

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