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Metropolitan Casualty Insurance Co. v. Goriola

United States District Court, Seventh Circuit

May 15, 2013

METROPOLITAN CASUALTY INSURANCE COMPANY, Plaintiff,
v.
GEORGIA GORIOLA, Defendant.

ORDER

DONALD G. WILKERSON, Magistrate Judge.

Now pending before the Court is the Motion to Bar Testimony of Jeffrey Watkins filed by Defendant, Georgia Goriola, on February 6, 2013 (Doc. 40) as well as the Motion to Strike Defendant's Expert Designation of Daniel Long filed by Plaintiff, Metropolitan Casualty Insurance Company, on March 8, 2013 (Doc. 45). For the reasons set forth below, the Motions are DENIED.

BACKGROUND

Georgia Goriola demanded compensation from Metropolitan Casualty pursuant to an insurance policy after a fire in her home on September 24, 2010 caused damage (Doc. 2). According to Metropolitan Casualty, Goriola forfeited compensation under the policy when she intentionally set the fire or otherwise acted to cause damage to her house, made misrepresentations, failed to cooperate in the investigation of the fire, and otherwise breached the terms of the policy. On September 28, 2010, Jeffrey Watkins personally observed the dwelling and interviewed Goriola on behalf of Metropolitan Casualty during its investigation of her claim (Doc. 43).

The Complaint in this matter was filed on August 30, 2011, (Doc. 2). On September 14, 2012, this Court issued its Second Amended Scheduling Order (Doc. 38). The Order read in pertinent part, "Expert witnesses shall be disclosed, along with a written report prepared and signed by the witness pursuant to Fed.R.Civ.P. 26(a)(2), as follows: Plaintiffs' experts: January 1, 2013; Defendant's experts: March 1, 2013." ( Id. ).

On December 28, 2012, Plaintiff filed its Expert Disclosures, wherein Jeffrey Watkins was named as a non-retained expert (Doc. 39). Plaintiff's Expert Disclosures included the subject matter on which Watkins would likely present evidence as well as a summary of the facts and opinions Watkins would likely testify to ( Id. ). On February 6, 2013, Defendant filed a Motion to Bar Testimony of Jeffrey Watkins (Doc. 40). In the Motion, Defendant states that Watkins is not a non-retained expert but rather a retained expert and that Plaintiff consequently must provide more information than had been included in the Expert Disclosures ( Id. ). In response, Plaintiff asserted that Watkins was in fact a non-retained expert (Doc. 43).

On March 1, 2013, Defendant filed her Expert Witness Disclosure (Doc. 44). Defendant attached as exhibits reports signed by the expert witnesses ( Id. ). On March 8, 2013, Plaintiff filed its Motion to Strike Defendant's Expert Designation of Daniel Long and the Purported Expert Report of Daniel Long as Improper and Untimely, as well as a Memorandum in Support (Doc. 45). Plaintiff alleges that Defendant's expert disclosure failed in three respects: (1) by not disclosing all required information, (2) by not timely disclosing the expert, and (3) by not giving proper notice by way of supplementing her responses to Plaintiff's written discovery ( Id. ). Defendant's response challenges each of these assertions (Doc. 46).

DISCUSSION

Defendant's Motion to Bar Testimony of Jeffrey Watkins

Federal Rule of Civil Procedure 26(a)(2) establishes the requirements for disclosure of expert testimony. If the expert is "retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony, " the disclosure must be accompanied by a written report containing the information provided in Rule 26(a)(2)(B)(i) through (vi). If the expert witness does not meet this definition of a retained expert, then the disclosure of such a "non-retained" expert must still include "the subject matter on which the witness is expected to present evidence" as well as "a summary of the facts and opinions to which the witness is expected to testify." FED.R.CIV.P. 26(a)(2)(C)(i-ii).

The official comments to the Federal Rules of Civil Procedure state that a treating physician is an example of an expert witness who was not retained or specifically employed to provide expert testimony. FED.R.CIV.P. 26 advisory committee's note, 1993 amend., subdiv. (a), para (2). When a treating physician's testimony is limited to her observation, diagnosis, and treatment of a patient, she is "providing expert testimony because of [her] involvement in the facts of the case." Musser v. Gentiva Health Services, 356 F.3d 751, 757 (7th Cir. 2004). If, however, a treating physician gives an opinion that she formed beyond her involvement in the case, then such a treating physician would be a retained expert and written report must be disclosed. Krischel v. Hennessy, 533 F.Supp.2d 790, 795 (N.D. Ill. 2008).

The same can be said of Jeffrey Watkins. Defendant contends that Mr. Wakins must be "retained" because of the nature of his testimony: he will provide opinions as to causation and his testimony is not limited to facts observed. There is no showing that Mr. Watkins is Plaintiff's regular employee or that he was retained in order to provide expert testimony in this case. Rather, Mr. Watkins was "engaged" by Plaintiff almost year before the present litigation in order to investigate and provide analysis of fire at issue in this case (Doc. 43). Defendant nonetheless states that, "Watkins opined that the fire was incendiary in nature and that the fire originated on a mattress when a pile of clothing was deliberately ignited. Thus Watkins' testimony goes well beyond what he observed during his investigation." (Doc. 40). However, the fact that Mr. Watkins' observations and opinions occurred prior to the present case does not create a causal relationship between his investigation and the present case. Defendant has not provided any evidence that would indicate that Mr. Watkins' observations were made in anticipation of providing expert testimony. Like a treating physician, a person who is retained by an insurance company during the normal course of investigating of an insured's claim is a non-retained expert and may provide opinions related to that investigation. Watkins is therefore a non-retained expert.

Because Mr. Watkins is not a retained expert as defined by Rule 26(a)(2)(B), the additional disclosure of information required for retained experts need not have been included. Plaintiff properly labeled Mr. Watkins a non-retained expert and included sufficient disclosure information under Rule 26(a)(2)(C). This Court expresses no opinion as to whether ...


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