Bancroft Life & Casualty ICC, LTD v. Scolari

Filing 101

ORDER denying 88 Defendant's Motion to Exclude Bancroft's Expert Witness "Reports", signed by Judge Ronald B. Leighton.(DN)

HONORABLE RONALD B. LEIGHTON

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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BANCROFT LIFE & CASUALTY ICC,
LTD.,

No.

3:11-CV-5017RBL

Plaintiff,
ORDER DENYING DEFENDANT’S
MOTION TO STRIKE BANCROFT’S
EXPERT WITNESS “REPORTS”

v.
CESAR SCOLARI,

[Dkt. #88]
Defendant.

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I.

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INTRODUCTION

This matter is before the Court on Defendant’s Motion to Strike Bancroft’s Expert
Witness Reports [Dkt. #88]. For the reasons set forth below, the Motion is DENIED.

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II.

FACTUAL BACKGROUND

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The Court’s original scheduling order made Expert Disclosure/Reports due by September

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14, 2011. On September 9, 2011, the Court signed a stipulated order extending that deadline to

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October 14, 2011. On that day, Defendant delivered to Plaintiff the report of its actuarial expert,

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Marne Rivelle. Plaintiff in turn delivered an “Expert Designation” for William N. Bartlett.

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On October 31, 2011, the Court signed an second stipulated order extending all deadlines,
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including the disclosure for expert testimony, to January 9, 2012. On January 9, 2012, Plaintiff

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submitted two “Rebuttal Expert Reports,” one authored by an actuary, Mr. Bartlett, and the other

Order - 1

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by an expert in insurance underwriting, particularly in the captive insurance context, Michael R.
Mead.
Defendant Scolari moves to strike Bancroft’s expert witness reports because the reports

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are not in compliance with Fed. R. Civ. P. 26 or Local Rule CR 43. Defendant argues that the

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reports violate FRCP 26(a)(2)(B) because they were not signed by the expert, and were not
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reviewed or authored by the expert.
Defendant also argues that Plaintiff’s use of both experts violates Local Rule CR 43(j)

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because the experts offer testimony on the same subject. Plaintiff argues that Defendant’s
motion should be denied because Plaintiff has cured any FRCP 26(a)(2)(B) defect, and Plaintiff’s

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use of both experts is not a violation of CR 43(j) because they seek to testify on matters within
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their particular areas of expertise to rebut Mr. Rivelle’s report.

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III.

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A.

AUTHORITY & DISCUSSION

Plaintiff’s Expert Witness Reports Do Not Violate FRCP 26.

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Plaintiff argues that there is no FRCP 26(a)(2)(B) violation because upon learning of the
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omission, Plaintiff provided Defendant with signed declarations, curing any defects.

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In its Reply [Dkt. #91], Defendant concedes that the Plaintiff has satisfied the

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requirements of FRCP 26(a)(2)(B). Indeed, the declarations of Plaintiff’s experts remedy any

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defect that the expert reports had, specifically, the declarations were signed, stated the experts’

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compensation for preparing their report, and stated that the expert had reviewed their report and
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agreed with its contents. Fed. R. Civ. P. 26(a)(2)(B); In Re Asbestos Products Liability

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Litigation, 714 F.Supp.2d 535, 542 (E.D. Pa. 2010). The Defendant has suffered no prejudice as

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a result from any delay, and the Plaintiff has complied with the requirements of FRCP 26.

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Wendt v. Host Int’l Inc., 125 F.3d 806, 814 (9th Cir. 1997).

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Order - 2

FRCP 26(g)(2) provides that if a party is concerned about an unsigned disclosure, the

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disclosure is stricken unless “a signature is promptly supplied after the omission is called to the

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attorney’s or party’s attention.” Fed. R. Civ. P. 26(g)(2). In this case, rather than bringing the

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omission to the Plaintiff’s attention, the Defendant filed this motion. After receiving this motion,

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Plaintiff promptly supplied Defendant with signed declarations from both experts, and the
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Plaintiff attempted to discuss the matter with the Defendant, but his voicemail message went

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unreturned.

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B.

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Plaintiff’s Expert Witness Reports Do Not Violate Local Rule CR 43(j).
Defendant argues that Plaintiff’s use of two expert witnesses violates CR 43(j) because

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both experts are expected to rebut the opinions of Plaintiff’s expert, Mr. Rivelle. Plaintiff argues
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that their expert reports do not violate CR 43(j) because each expert is prepared to offer expert

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testimony within their particular areas of expertise to: (1) explain the basis for the retrospective

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premium assessment levied; and (2) rebut different contentions of Mr. Rivelle’s expert report.

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Local Rule CR 43(j) provides: “[e]xcept as otherwise ordered by the court, a party shall
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not be permitted to call more than one expert witness on any subject.” In this case, each of

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Plaintiff’s experts is expected to offer testimony on different subjects. Mr. Bartlett is an actuary,

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and he is expected to testify about the actuarial “principles and methods” he used to create the

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formula to calculate the Defendant’s retrospective assessment.

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Mr. Mead is an expert in captive insurance underwriting. He expected to testify about and
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respond to Mr. Rivelle’s report regarding the purpose for, and disclosure of, retrospective

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assessments in the captive insurance context. Where Mr. Bartlett’s and Mr. Mead’s testimony

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overlap in responding to Mr. Rivelle’s report, they do so based on their distinct areas of

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expertise.

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Order - 3

The Defendant does not demonstrate that Mr. Bartlett and Mr. Mead will testify on the

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same subject. Defendant primarily rebuts the math and actuary principles used to calculate the

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retrospective assessment. These arguments are good candidates for cross-examination subject

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matter.

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Defendant’s motion to strike Plaintiff’s expert witness reports [Dkt. #88] is DENIED.
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IT IS SO ORDERED

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DATED this 10th day of May, 2012.

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A

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Ronald B. Leighton
United States District Judge

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Order - 4