Sarcopski et al v. State Farm Mutual Automobile Insurance Company et al
Filing
188
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING MAGISTRATE JUDGE'S 90 ORDER GRANTING PLAINTIFFS 37 MOTION FOR LEAVE TO FILE EXPERT DISCLOSURES AND OVERRULING DEFENDANTS 107 OBJECTIONS. Signed by Senior Judge Frederick P. Stamp, Jr on 12/4/2018. (kac) (Copy to counsel)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DOUGLAS SARCOPSKI and
SHARON SARCOPSKI,
Plaintiffs,
v.
Civil Action No. 5:17CV41
(STAMP)
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
RICHARD B. KASDAN, M.D. and
CENTRE COMMONS MRI, P.C.,
Defendants.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING MAGISTRATE JUDGE’S
ORDER GRANTING PLAINTIFFS’ MOTION FOR
LEAVE TO FILE EXPERT DISCLOSURES
AND OVERRULING DEFENDANT’S OBJECTIONS
I.
Procedural History
The plaintiffs missed their expert disclosure deadline and
then filed a motion asking the magistrate judge to allow them to
make an expert disclosure out of time.
ECF No. 37.
Magistrate
Judge James E. Seibert entered an order granting the plaintiffs’
motion for leave to file expert disclosures.
ECF No. 90.
The
defendant then filed objections to the magistrate judge’s order.
ECF No. 107.
For the following reasons, the magistrate judge’s
order is affirmed and adopted and the defendant’s objections are
overruled.
II.
Background
Counsel for defendant State Farm Automobile Insurance Company
(“State Farm”) removed this case to this Court on April 3, 2017,
from the Circuit Court of Ohio County, West Virginia.
The case
arises from an automobile accident in which a woman, Misty Merinar,
collided with the vehicle Douglas Sarcopski (“Mr. Sarcopski”) was
driving and in which Sharon Sarcopski (“Mrs. Sarcopski”) was a
passenger.
Plaintiffs Douglas and Sharon Sarcopski were insured
under a first-party automobile insurance policy purchased and
contracted from State Farm.
The plaintiffs allege that the
collision was entirely the fault of Ms. Merinar.
made
a
claim
for
Mr.
Merinar’s
liability
Mr. Sarcopski
policy
limits
of
$50,000.00 and was paid by Ms. Merinar’s first-party liability
carrier, Safeco Insurance Company.
The plaintiffs allege that
State Farm has refused to timely settle Mr. Sarcopski’s claim for
underinsured motor vehicle insurance policy benefits, even though
it was clear to State Farm that they were liable to Mr. Sarcopski
for the injuries, damages, and losses sustained by him in excess of
the liability policy limits paid by Safeco.
The plaintiffs filed a motion for leave to file expert
disclosures.
ECF No. 37.
In the memorandum in support of that
motion, the plaintiffs argue that their failure to timely disclose
an expert witness was substantially justified or is harmless.
No. 66 at 1.
ECF
The plaintiffs indicate that one of their experts,
Vincent King (“King”), did not accept the first-party bad faith
2
case due to critical missing entries. Id. at 3. Plaintiffs allege
that after King rejected their case, plaintiffs reviewed the claim
file that is comprised of 2756 pages.
Id.
After, the plaintiffs
indicate that they proceeded to enlist a new expert, Jack Lane
(“Lane”), and that he returned their call or message on April 17,
2018.
Id.
Plaintiffs allege that Lane informed the plaintiffs
that he had been ill and retired from doing expert work.
Id.
The
plaintiffs argue that allowing the plaintiffs to name an insurance
expert would not surprise the defendant since its counsel is
experienced and the defendant did not file a motion to exclude the
plaintiffs’ expert.
Id. at 4-5.
Moreover, the plaintiffs argue
that, even if the defendant is surprised by the plaintiffs’
insurance expert, the issue can be cured because: (1) the trial
date does not need to be moved; (2) the Court has discretion to
extend deadlines to supplement expert opinions and reports; and (3)
the issues presented are clear and not complicated.
Id. at 5-8.
Lastly, the plaintiffs argue that the evidence is important to the
administration of justice since the plaintiffs have no other
insurance expert.
Id. at 8.
The defendant State Farm then filed a memorandum in opposition
to the plaintiffs’ motion for leave to file expert disclosures.
ECF No. 69. In the memorandum, the defendant first argues that the
plaintiffs have not been diligent in complying with the Court’s
scheduling order.
The defendant further argues that there was no
3
reason for the defendant to file a motion to exclude an expert if
an expert was never identified by the plaintiffs.
Id. at 5.
Moreover, the defendant asserts that the late disclosure of an
expert may complicate the facts and issues of the case.
Id. at 7.
The magistrate judge set an evidentiary hearing and argument
on the plaintiffs’ motion for leave to file expert disclosures.
ECF No. 61.
That hearing was later rescheduled.
ECF No. 62.
After briefing by the parties, the magistrate judge entered an
order granting the plaintiffs’ motion for leave to file expert
disclosures.
ECF No. 90.
The defendant filed timely objections to that order (ECF No.
107). In its objections, State Farm first argues that the facts in
Southern
States
are
“entirely
distinguishable,”
in
that
the
plaintiffs here failed to properly disclose any expert or make an
expert witness disclosure in compliance with the scheduling order
(ECF No. 8).
Id. at 4.
Moreover, the defendant argues that the
plaintiffs provided no substantial justification for the delay, and
since they did not timely disclose, State Farm would be unduly
prejudiced at trial. Id. The defendant further contends that even
if the test in Southern States Rack and Fixtures, Inc. v. Sherwin
Williams Co., 318 F.3d 592 (4th Cir. 2003), is applied, the
plaintiffs fail to meet several elements. Id. at 5. The defendant
specifically emphasizes prong 4 of the test, arguing that the
magistrate
judge's
order
incorrectly
4
found
that
the
parties
provided sufficient explanation for the delay.
Id. at 6.
The
defendant alleges that the plaintiffs waited nearly a year after
the scheduling order was entered and after State Farm’s claim file
was
provided
and
approximately
one
month
before
the
expert
disclosure deadline before even contacting their first expert
witness.
Id.
Lastly, the defendant argues that there is a
misunderstanding by the magistrate judge as to what type of expert
the plaintiffs planned to disclose. Id. at 6-7. For the foregoing
reasons, the defendant requests the Court set aside the magistrate
judge’s order (ECF No. 90).
III.
Id. at 7.
Applicable Law
Under Federal Rule of Civil Procedure 72(a), a district court
may refer to a magistrate judge “a pretrial matter not dispositive
of a party’s claim or defense.”
Fed. R. Civ. P. 72(a).
The
parties may file objections to the magistrate judge’s order, and
the magistrate judge’s ruling may be reversed only on a finding
that the order is “clearly erroneous or is contrary to law.”
R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1).
Fed.
“A finding is ‘clearly
erroneous’ when although there is evidence to support it, the
reviewing court on the entire evidence is left with a definite and
firm conviction that a mistake has been committed.”
United States
v. United States Gypsum Co., 333 U.S. 354, 68 S. Ct. 525, 92 L.Ed.
746 (1948). In light of the broad discretion given to a magistrate
judge in the resolution of nondispositive discovery disputes, the
5
court should only overrule a magistrate judge’s determination if
this discretion is abused.
Detection Sys., Inc. v. Pittway Corp.,
96 F.R.D. 152, 154 (W.D. N.Y. 1982); Shoop v. Hott, No. 5:08CV188,
2010 WL 5067567, at *2 (N.D. W. Va. Dec. 6, 2010).
Federal Rule of Civil Procedure 26(b)(1) permits parties to
“obtain
discovery
regarding
any
nonprivileged
matter
that
is
relevant to any party’s claim or defense and proportional to the
needs of the case.”
Fed. R. Civ. P. 26(b)(1).
In considering
proportionality, courts must consider: (1) “the importance of the
issues at stake in the action;” (2) “the amount in controversy;”
(3) “the parties’ relative access to relevant information;” (4)
“the parties’ resources;” (5) “the importance of the discovery in
resolving the issues;” and (6) “whether the burden or expense of
the
proposed
discovery
outweighs
its
likely
benefit.”
Id.
“Information within this scope of discovery need not be admissible
in evidence to be discoverable.”
Id.
Courts may forbid certain
disclosures or discovery “to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense.”
Fed. R. Civ. P. 26(c)(1).
IV.
Discussion
The plaintiffs requested leave to file expert disclosures.
ECF No. 37.
Magistrate Judge Seibert granted the plaintiffs’
motion, concluding that the applicable balancing test to determine
whether the plaintiffs’ failure to make their expert disclosures
6
was substantially justified or harmless weighs in the plaintiffs’
favor.
ECF No. 90.
Applying the balancing test in Southern States, 318 F.3d at
596, the magistrate judge found that: (1) surprise to the defendant
is relatively small; (2) the defendant has the ability to cure the
surprise because the defendant has the opportunity to depose the
expert and stated it has already retained an expert of its own who
will have time to review the plaintiffs’ expert report; (3) there
are several weeks for the defendant to develop its trial strategy;
and (4) plaintiffs stated that they were working diligently to find
an expert and were unable to secure one earlier.
Id. at 2-3.
This
Court finds no clear error in the magistrate judge’s conclusion
and, thus, affirms and adopts the magistrate judge’s order granting
the plaintiffs’ motion for leave to file expert disclosures (ECF
No. 90).
V.
For
the
granting
the
foregoing
Conclusion
reasons,
plaintiffs’
motion
the
for
magistrate
judge’s
leave
file
to
disclosures (ECF No. 90) is AFFIRMED and ADOPTED.
order
expert
Accordingly,
defendant’s objections to the magistrate judge’s order (ECF No.
107) are OVERRULED.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
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DATED:
December 4, 2018
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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