Vincenzo et al v. AIG Insurance Services, Inc.

Filing 68

ORDER/OPINION GRANTING DEFENDANT'S 60 MOTION TO STRIKE EXPERTS. Signed by Magistrate Judge John S Kaull on 10/7/2009. (kd)

IN THE UNITED STATES DISTRICT COURT F O R THE NORTHERN DISTRICT OF WEST VIRGINIA

F R A N K W. VINCENZO and S A N D R A K. VINCENZO, his wife, P la in tif f s , vs. C I V I L ACTION NO. 1:07CV26

A I G INSURANCE SERVICES, INC., D efe n d a n t.

O R D E R /O P I N I O N GRANTING DEFENDANT'S MOTION TO STRIKE EXPERTS O n the 10th day of October, 2009, Defendant Chartis Claims, Inc. (formerly known as AIG D o m e s tic Claims, named in the Complaint as AIG Insurance Services, Inc. and hereinafter referred to as "Defendant") filed a Motion to Strike Plaintiffs' Expert Witness Disclosures of Homayoun H a jira n , Jack Lane, and Unnamed Attorneys [Docket Entry 60]. No Response has yet been filed, a n d none is due at this time. For reasons stated below, Defendant's Motion to Strike is GRANTED. P la in tiffs Frank W. Vincenzo and Sandra K. Vincenzo ("Plaintiffs") filed this case in the C irc u it Court of Monongalia County, West Virginia on January 24, 2007 [Docket Entry 1]. Defendants removed the case to this Court on February 26, 2007 [Id.]. Defendant filed a Motion to D is m is s on March 5, 2007 [Docket Entry 5]. On September 21, 2007, the Honorable Irene M. K e e le y, United States District Judge, entered an order denying Defendant's motion to dismiss, but s ta yin g the action while Defendant pursued an interlocutory appeal with the Fourth Circuit Court of A p p e a ls . [Docket Entry 17]. On July 7, 2008, the Fourth Circuit affirmed this Court's denial of the m o tio n to dismiss [Docket Entry 23], and on July 29, 2008, this Court lifted the stay of the case [D o c k e t Entry 24]. Defendant filed its Answer to the Complaint on July 31, 2008 [Docket Entry 25].

On November 13, 2008, the District Judge entered a Scheduling Order in this case setting the d e a d lin e for Plaintiffs' Expert Disclosures for May 15, 2009 [Docket Entry 30]. On May 15, 2009, Plaintiff filed a motion to enlarge the time period to file and disclose e x p e rt witnesses by two weeks following service of the defendant's responses to Plaintiffs' discovery [D o c k e t Entry 32]. The Court granted Plaintiffs' motion, extending their deadline for filing of expert d is c lo s u re s to June 10, 2009 [Docket Entry 33]. Plaintiffs then served expert disclosures on June 10, 2009. O n August 10, 2009, the parties filed a Joint Motion for Extension of Time to Complete D i s c o v e ry, Mediation Deadline, and Expert Reports [Docket Entry 39]. On August 12, 2009, the C o u rt granted the motion, setting the deadline for discovery on October 9, 2009; mediation by O c to b e r 9, 2009; expert report deadline for August 31, 2009; and dispositive motions by October 22, 2 0 0 9 [Docket Entry 41]. All but the dispositive motions deadline were those requested by the p a rtie s . O n August 12, 2009, Plaintiffs served a Supplemental Designation of Experts [Docket Entry 4 0 ­ Certificate of Service Only as per Federal Rules and Local Rules of Civil Procedure]. D e fe n d a n ts contend that the plaintiff's original expert witness disclosure listed Homayoun H a jira n , PhD, and included his curriculum vitae, but no report; listed Jack Lane, and included his c u r r ic u lu m vitae, but no report; and also stated that Plaintiffs "anticipate calling various attorneys w h o have represented claimants against AIG Insurance Services, Inc. who will provide testimony in th e nature of TXO evidence." (See Defendants' Motion at Exhibit A). Defendants further contend th a t Plaintiff's supplemental designation of experts includes an insufficient report from Jack Lane, a n d no report from Dr. Hajiran (See Defendant's Motion at Exhibit B). Finally, Defendants contend th a t no additional information was provided regarding the "various [unnamed] attorneys."

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Defendants argue that Plaintiffs' expert disclosures do not comply with Federal Rule of Civil P ro c e d u re 26(a)(2)(A) and (B) and the Court's scheduling order, and should therefore be stricken. A review of the Exhibits attached to Defendant's motion indicated Plaintiffs provided Mr. La n e 's fee schedule; curriculum vitae; list of trials and depositions for the past four years; and a report. Plaintiffs also provided Dr. Hajiran's curriculum vitae; list of publications; list of trials and d e p o s itio n s since January 2000; and fee schedule. No further information was provided regarding th e "various [unnamed] attorneys . . . who will provide testimony in the nature of TXO evidence." Fed.R.Civ.P. 26(a)(2) provides: (A ) In General. In addition to the disclosures required by Rule 26(a)(1), a party m u s t disclose to the other parties the identity of any witness it may use at trial to p re s e n t evidence under Federal Rule of Evidence 702, 703, or 705. ( B ) Written Report. Unless otherwise stipulated or ordered by the court, this d is c lo s u re must be accompanied by a written report - - prepared and signed by the w itn e s s - - if the witness is one retained or specially employed to provide expert te s tim o n y in the case or one whose duties as the party's employee regularly involve giv in g expert testimony. The report must contain: (i) a complete statement of all opinions the witness will express and th e basis and reasons for them; (ii) the data or other information considered by the witness in forming th em ; (iii) any exhibits that will be used to summarize or support them; (iv ) the witness's qualifications, including a list of all publications a u th o re d in the previous 10 years; (v ) a list of all other cases in which, during the previous four years, th e witness testified as an expert at trial or by deposition; and ( v i) a statement of the compensation to be paid for the study and te s tim o n y in the case. (C ) Time to Disclose Expert Testimony. A party must make these disclosures at the tim e s and in the sequence that the court orders . . . . The Court's original Scheduling Order entered November 13, 2008, which set the deadline fo r Plaintiffs' expert disclosures as May 15, 2009, provides:

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3.

E X P E R T DISCLOSURES: The plaintiffs shall make the disclosures of in fo rm a tio n required by Fed.R.Civ.P. 26(a)(2)(A) and (B) for that issue to all o th e r parties or their counsel no later than May 15, 2009 . . . .

T h e District Court's order of August 12, 2009, extending the deadline for Plaintiff's expert d is c lo s u re s to August 31, 2009, contained the identical paragraphs cited above, with the exception o f the date the disclosures were due. Upon review of the documents provided as attachments to Defendants' motion, the Court fin d s Plaintiffs have clearly not complied with Fed.R.Civ.P.26(a)(2)(A) and (B) or the Scheduling O rd e r regarding the unnamed attorneys. Even if these unnamed attorneys were not being called as re ta in e d experts, Plaintiffs would still need to at the very minimum disclose their identities. They h a v e not done so. Plaintiffs have also not complied with the Rule or the Scheduling Order regarding D r. Hajiran, as there is no report containing any statement of opinions he will express and the reasons fo r them; the data or other information considered by him in forming the opinions; or any exhibits th a t will be used to summarize or support his opinions. Although Mr. Lane did provide a supplemental report, the Court finds that report insufficient u n d e r the Rule and the Scheduling Order. Mr. Lane's report consists of three pages­ the first two a re a history of his insurance career and the fees he is charging as an expert in this case. The third a n d final page provides in toto: T h e materials I reviewed to formulate my opinions are as follows: 1. 2. 3. 4. 5. 6. 7. C o m p la in t and Answer in this case In te rro ga to rie s answered by Defendant, AIG P riv ile ge Log of Defendant, AIG C la im file produced by AIG P la in tiffs ' Mediation Statement and supplement P la in tiffs ' Correspondence in liability claim M o n o n ga h e la Power Correspondence

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A IG failed to effectuate a prompt, fair and reasonable offer of settlement in M a y of 2005 by offering $30,000, for a claim that settled for $450,000.00 in J a n u a ry of 2006. In May, 2005 liability was reasonably clear to warrant a s e ttle m e n t offer. A IG failed to effectuate a prompt, fair and reasonable offer to [sic] settlement a fte r receiving the surveillance information conducted in June, 2005. No o ffe r was made above the $30,000.00 and the claim settled for $450,000.00.

2.

3.

A IG failed to effectuate a prompt, fair and reasonable offer of settlement from July, 2 0 0 5 until the claim settled in January, 2006.

R e v ie w of additional documentation or materials may result in a change of or a d d itio n a l opinions. T h e Court finds Mr. Lane's report and supplemental report do contain his qualifications, all o th e r cases in which he has testified as an expert at trial and deposition, and a statement of the c o m p e n s a tio n he is to be paid. He also listed his opinions and information he considered in forming th e opinions. The Court, however, finds Mr. Lane's report does not contain "a complete statement o f all opinions [he] will express and the basis and reasons for them;" "the data or other information c o n s id e re d by the witness in forming them;" or "any exhibits that will be used to summarize or s u p p o rt them." Further, in Jackson v. State Farm Mut. Auto. Ins. Co., 600 S.E.2d 346 (W.Va. 2004), th e West Virginia Supreme Court of Appeals held: [ A ]s a general rule, an expert witness may not give his or her opinion on the in te rp re ta tio n of the law as set forth in W. Va. Code, 33-11-4(9)(a)-(o) [2002], which d e fin e s unfair claim settlement practices; the legal meaning of terms within that code s e c tio n ; or whether a party committed an unfair claim settlement practice as defined in that Code section. Rather, it is the role of the trial judge to instruct the jury on the la w . Based on this rule, we believe that it was clearly wrong for the circuit court to p e rm it Mr. Diaz to testify that State Farm's actions violated the Unfair Claim S e ttle m e n t Practices Act . . . . While Mr. Diaz may testify to ordinary practices of c l a i m s adjustment and settlement within the insurance industry, and whether State F a rm 's conduct in the instant case conformed to those ordinary practices, he may not te s tify as to the legal consequences of the conduct.

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While Mr. Lane does not mention the UTPA per se in his opinions, they use nearly identical la n gu a ge to that contained in W.Va.Code section 33-11-4(9)(f), which provides: N o person shall commit or perform with such frequency as to indicate a general b u s in e s s practice any of the following . . . . Not attempting in good faith to effectuate prompt, fair and equitable settlements of c la im s in which liability has become reasonably clear. T h e Court notes that in a prior case in this District, Wagner v. St. Paul Fire and Marine Ins. C o ., 2007 WL 1381519 (N.D.W.Va. 2007)(Civil Action No. 5:05cv117), the Honorable Frederick P . Stamp, District Judge, addressed the identical issue of whether Mr. Lane's expert report in that c a s e complied with the express requirements of Fed.R.Civ.P. 26(a)(2)(B). Judge Stamp entered an O rd e r dated May 9, 2007, finding that while Mr. Lane's report adequately listed his qualifications, p u b lic a tio n s , and compensation as well as a listing of other cases in which he has testified as an e x p e rt, Mr. Lane's report "has not adequately set forth in sufficient detail the other information re q u ire d under the rule." Judge Stamp held as follows: In this Court's view, Mr. Lane has not set forth in sufficient detail the basis for each o p in io n or the data or other information considered in forming his opinion. Further, h e has not listed the exhibits, if any, he will be using as a summary of or support for h is opinions. It should be pointed out that Rule 26(a)(2)(B) is a broad disclosure re q u ire m e n t and is not limited to matters supporting the experts opinion but must in c lu d e , "data or other information considered" by the witness in forming his or her o p in io n . (Emphasis in original). C o m p a rin g the report submitted by Mr. Lane in the Wagner case to his report in the case at b a r, the Court finds the report in Wagner actually provided more of "a complete statement of all

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opinions [he] will express and the basis and reasons for them"1 than in the case at bar. T h e Court in the case at bar finds Mr. Lane "has not set forth in sufficient detail the basis for e a c h opinion or the data or other information considered in forming his opinion. Further, he has not lis te d the exhibits, if any, he will be using as a summary of or support for his opinions." For all the above reasons, Defendant's "Motion to Strike Plaintiffs' Expert Witness

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Mr. Lane's report in Wagner stated the following:

1. The insurance company deliberately deviated from the insurance industry standards of adjusting for prematurely denying coverage for the personal injury claim of Joseph Wagner on June 4, 1999. The insurance company should have sent a reservation of rights letter, completed the necessary research to determine the factors of immunity, and filed a declaratory judgement action seeking a proper ruling. 2. The insurance company deliberately deviated from the insurance industry standards of adjusting for denying coverage for the personal injury claim of Joseph Wagner caused by the automobile accident on March 10 1999' The insured driver was not on company business or was not within the scope of his employment. The insurance company should have provided coverage and handled the personal injury claim of Mr. Wagner. 3. The insurance company deviated from the insurance industry standards of adjusting by denying liability for the accident in litigation when the claim file indicates the insured was clearly at fault as of March 24, 1999, as confirmed in the Affidavit of Nelson Croft dated May 24, 2004. 4. The insurance company deviated from the insurance industry standards of adjusting for filing to effectuate a prompt fair and reasonable offer of settlement for the personal injury claim of Mr. Wagner's personal injury claim [sic] by offering a "low ball offer" of $150,000.00 as the case settled for $300,000.00 on August 25, 2004. 5. The insurance company deviated from the insurance industry standards of adjusting for failing to issue the settlement check in the amount of $300,000.00 in a timely manner. The case was settled on August 25, 2004 and a check and release was not sent until December 3, 2004. 6. The above insurance company's adjusting of this claim indicates a general business practice in the claim handling procedures regarding the claim Joseph Wagner [sic]. Review of additional documentation or material may result in additional opinions and change of these opinions. 7

Disclosures of Homayoun Hajiran, Jack Lane, and Unnamed Attorneys" [Docket Entry 60] is G RANTED. It is so ORDERED. T h e United States Clerk for the Northern District of West Virginia is directed to provide a c o p y of this order to counsel of record. D A T E D : October 7, 2009.

John S. Kaull
J O H N S. KAULL U N IT E D STATES MAGISTRATE JUDGE

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