Wells Fargo Insurance Services USA, Inc v. Ogden et al

Filing 173

ORDER denying Defendants' 167 Motion for Relief from Expert Discovery Deadlines. Signed by Judge Stanley A. Bastian. (LH)

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UNITED STATES DISTRICT COURT

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WESTERN DISTRICT OF WASHINGTON

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9 USI INSURANCE SERVICES
10 NATIONAL, INC., formerly known as

NO. 2:17-cv-01394-SAB

11 WELLS FARGO INSURANCE
12 SERVICES USA, INC.,
Plaintiff,

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ORDER DENYING
DEFENDANTS’ MOTION FOR

14 v.

RELIEF FROM EXPERT

15 STANLEY OGDEN, et al.,

DISCOVERY DEADLINES

Defendants.

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Before the Court is Defendants’ LCR7(j) and Fed. R. Civ. Proc. 16(b)(4)

19 Motion for Relief from Expert Discovery Deadlines, ECF No. 167. The motion
20 was heard without oral argument. Plaintiff is represented by Megan Crowhurst,
21 Thomas Holt, Anne Reuben, and David Symes. Defendants are represented by
22 Chrisopher Banks, Debra Fischer, Aviva Kamm, Lance Pelletier and Justo
23 Gonzalez.
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Defendants move the Court to extend the expert discovery deadline, or in

25 the alternative, exclude the July 16, 2019 opinion of Plaintiff’s expert Peter
26 Nickerson. After reviewing the parties’ briefing and fully considering this matter,
27 the Court denies Defendants’ LCR7(j) and Fed. R. Civ. Proc. 16(b)(4) Motion for
28 Relief from Expert Discovery Deadlines.
ORDER DENYING DEFENDANTS’ MOTION FOR RELIEF FROM
EXPERT DISCOVERY DEADLINES ~ 1

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Motion Standards

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Fed. R. Civ. P. 16(b)(4) provides:
(4) Modifying a Schedule. A schedule may be modified only for
good cause and with the judge’s consent.

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Fed. R. Civ. P. 26 provides, in part:
(a) (2)(E) Supplementing the Disclosure. The parties must
supplement [expert] disclosures when required under Rule 26(e)
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(e)(2) Expert Witness. For an expert whose report must be
disclosed under Rule 26(a)(2)(B), the party’s duty to supplement
extended both to information included in the report and to information
given during the expert’s deposition. Any additions or changes to this
information must be disclosed by the time the party’s pretrial
disclosures under Rule 26(a)(3) are due.

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Local Rule 7(j) provides:

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(j) Motions for Relief from a Deadline
A motion for relief from a deadline should, whenever possible, be filed
sufficiently in advance of the deadline to allow the court to rule on the
motion prior to the deadline. Parties should not assume that the motion will
be granted and must comply with the existing deadline unless the court
orders otherwise.
If a true, unforeseen emergency exists that prevents a party from meeting a
deadline, and the emergency arose too late to file a motion for relief from
the deadline, the party should contact the adverse party, meet and confer
regarding an extension, and file a stipulation and proposed order with the
court. Alternatively, the parties may use the procedure for telephonic
motions in LCR 7(i). It is expected that if a true emergency exists, the
parties will stipulate to an extension.

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On November 15, 2017, Judge Lasnik entered a Case Management Order,

27 stating, in part:
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ORDER DENYING DEFENDANTS’ MOTION FOR RELIEF FROM
EXPERT DISCOVERY DEADLINES ~ 2

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These are firm dates that can be changed only by order of the Court,
not by agreement of counsel or the parties. The Court will alter these
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dates only upon good cause shown; failure to complete discovery
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within the time allowed is not recognized as good cause.
4 ECF No. 24.
The Case Management Order also set the deadline for reports from expert
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6 witnesses for August 8, 2018. Id.
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Background Facts

On August 8, 2018, Plaintiff disclosed and submitted its expert reports,

9 which included reports from R. Bryan Tilden and Peter Nickerson. On October 3,
10 2018, Dr. Peter Nickerson issued a supplemental report on Plaintiff’s alleged
11 damages, correcting his inadvertent failure to account for certain cost savings
12 favorable to Defendants. Plaintiff also produced eight Excel files that included
13 financial “pro forma” from the Defendant producers, including the revenues
14 specifically attributable to each individual Defendant, the underlying account

15 revenue info for each broker or “producer,” and the specific lost revenue per
16 producer that went to other parties with the individual Defendants’ departure from

17 Plaintiff. On October 30, 2018, Dr. Nickerson produced his complete expert file in
18 response to Defendants’ subpoena.
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Defendants did not designate any experts or rebuttal experts. Defendants

20 took Dr. Nickerson’s deposition on October 30, 2018.
On March 6, 2019, Judge Lasnik granted in part, and denied in part, the
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22 parties’ Motions for Summary Judgment. ECF No. 128. In doing so, some of the
23 Defendants were dismissed from the action. Judge Lasnik also noted that the lump
24 sum calculation of lost profits presented by Plaintiff’s experts “makes it
25 impossible to allocate damages to those defendants who actually breached an

26 enforceable restrictive covenant or duty. Id. Judge Lasnik encouraged the parties
27 to resume or restart settlement negotiations. Id.
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The parties engaged in settlement talks in July 2019. The talks were

ORDER DENYING DEFENDANTS’ MOTION FOR RELIEF FROM
EXPERT DISCOVERY DEADLINES ~ 3

1 unsuccessful. ECF No. 137. As part of the settlement talks, Plaintiff provided a
2 Report from Dr. Nickerson dated July 16, 2019. ECF No. 168-5. The report was
3 attached to Plaintiff’s Mediation Statement, which indicated that it was
4 Confidential and For Settlement Purposes Only. ECF No. 168-4.
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Shortly thereafter, this case was reassigned to this Court. On February 29,

6 2020, Defendants filed a Motion to Exclude Testimony and Reports of USI’s
7 Experts Peter Nickerson & R. Bryant Tilden. ECF No. 143. In response to the
8 Motion, Plaintiff submitted Dr. Nickerson’s July 16, 2019 Report. ECF No. 147-3.
9 Relying on that Report, the Court denied Defendants’ Motion on July 31, 2020.
10 ECF No. 153.
Analysis

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Defendants now seek an extension of the deadline for filing expert rebuttal

13 reports or in the alternative, seek to exclude Dr. Nickerson’s testimony based on
14 the July 16, 2019 Report.
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Defendants have not demonstrated good cause to extend the deadline for

16 filing expert rebuttal reports.1 Defendants attempt to use the alleged late
17 disclosure of Dr. Nickerson’s July 16, 2019 report to justify its request to extend
18 the deadline. However, Dr. Nickerson’s July 16, 2019 Report is not untimely.
19 Rather, it is a proper supplementation to his initial timely disclosed expert report.
20 Even if it were not, Defendants have not acted with due diligence in preserving
21 this argument. Defendants were put on notice in March 2020 that Plaintiff
22 intended to reply on Dr. Nickerson’s July 16, 2019 Second Supplemental Report.
23 See ECF No. 145. Likewise, it was clear in the Court’s Order that it considered
24 Dr. Nickerson’s Second Supplemental Report when it ruled on Defendants’
25 motion to exclude his testimony. See ECF No. 153. Eight months later,
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27 1 The Court finds that Local Rule 7(j) does not apply to Defendant’s request to
28 extend the expert deadline that was set forth in Judge Lasnik’s Scheduling Order.
ORDER DENYING DEFENDANTS’ MOTION FOR RELIEF FROM
EXPERT DISCOVERY DEADLINES ~ 4

1 Defendants are now asking the Court to reconsider that decision, although
2 granted, this time for a different reason. Even so, if Defendants believed that Dr.
3 Nickerson’s Second Supplemental Report was improperly disclosed, the time to
4 bring this to the Court’s attention was either before it ruled on their pending
5 motion, or shortly thereafter.
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Finally, Defendants cannot credibly argue that they will be unfairly

7 prejudiced by Dr. Nickerson’s testimony based on his July 16, 2019 Second
8 Supplemental Report, given that they have known about this report for almost
9 three years prior to trial.
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Accordingly, IT IS ORDERED:

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Defendants’ LCR7(j) and Fed. R. Civ. Proc. 16(b)(4) Motion for

12 Relief from Expert Discovery Deadlines, ECF No. 167, is DENIED.
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IT IS SO ORDERED. The District Court Clerk is hereby directed to enter

14 this Order and to provide copies to counsel.
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DATED this 21st day of March 2022.

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_____________________________
Stanley A. Bastian
U.S. District Judge

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ORDER DENYING DEFENDANTS’ MOTION FOR RELIEF FROM
EXPERT DISCOVERY DEADLINES ~ 5