United States District Court, D. Montana, Missoula Division
W. Wayne Harper, HARPER LAW, Butte, Montana, Attorney for Plaintiff.
DONALD W. MOLLOY, District Judge.
This case arises from the adjustment and handling of a claim made on Plaintiffs Mark and Margaret Laslovich's ("Plaintiffs") home insurance policy following a fire. The parties dispute whether the damage to the home is repairable or whether it constitutes a total loss. Defendant State Farm Fire and Casualty Company ("State Farm") objects to Plaintiffs' expert disclosures and seeks to exclude the experts from offering testimony at trial. (Doc. 17.) State Farm also requests Plaintiffs' expert disclosure be stricken from the docket. State Farm's motion is granted in part and denied in part.
I. The Individual Disclosures
The parties must make their expert disclosures at the time and in the manner ordered by the Court. Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 827 (9th Cir. 2011). If a party fails to disclose this information, the party cannot use the non-disclosed information at trial "unless the failure was substantially justified or is harmless." Fed.R.Civ.P. 37(c)(1); Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). The parties were reminded of this potential sanction in the Scheduling Order, which states: "An inadequate report or disclosure may result in exclusion of the expert's opinion at trial even though the expert has been deposed." (Doc. 14 at ¶ 9.)
Rule 26(a)(2) provides for two different types of expert disclosure: those retained or specifically employed to give expert testimony in a case, Fed.R.Civ.P. 26(a)(2)(B), and those who are not retained or specially employed, but who nonetheless may provide expert testimony, Fed.R.Civ.P. 26(a)(2)(C). An expert who falls into the first category is required to prepare an expert report. Fed.R.Civ.P. 26(a)(2)(B). An expert who falls into the second category, however, need only provide disclosures stating both the subject matter on which the non-retained expert is expected to present evidence and a summary of the facts and opinions as to which the non-retained expert is expected to testify. Fed.R.Civ.P. 26(a)(2)(C). The question here is whether Plaintiffs' experts are governed by Rule 26(a)(2)(B) or 26(a)(2)(C) and, depending on which rule governs, whether the disclosures are sufficient.
A. Charles E. Lee and Joe Novak
Plaintiffs' disclosure provides that "Mr. Lee will opine that he reviewed the initial repair estimates of [State Farm]'s repair experts'... and found their assumptions and cost of repairs for all electrical work at the Plaintiff's [sic] home woefully inadequate." (Doc. 16 at ¶ 1.) He is also expected to testify that Dayspring did not follow industry standards or consider the applicable electrical codes. (Id. ) Similarly, Plaintiffs' disclosure states that "Mr. Novak will opine that he reviewed the initial repair estimates of [State Farm]'s repair experts, '... and found their assumptions and costs of repairs for all plumbing work at the Plaintiff's [sic] home to be inaccurate and inappropriate." (Id. at ¶ 2.) Mr. Novak is also to testify that Dayspring did not follow industry standards and did not consider the applicable plumbing codes. (Id. ) It appears from the context of these disclosures that Mr. Lee and Mr. Novak have been specially retained to offer expert opinions as to electrical and plumbing estimates specifically for this litigation. Pursuant to Rule 26(a)(2)(B), expert reports are required. No such reports have been disclosed.
Accordingly, Mr. Lee and Mr. Novak's testimony may be properly excluded from trial unless Plaintiffs can show their failure to comply with Rule 26(a)(2)(B) was either substantially justified or harmless. Fed.R.Civ.P. 37(c)(1). Plaintiffs have done neither. Plaintiffs merely assert that State Farm has not been prejudiced by the disclosures because State Farm can discern from the information provided what adverse opinions are being proffered. Although State Farm may be able to discern that these individuals disagree with its estimates, without the requisite report State Farm has no idea how Mr. Lee or Mr. Novak reached the conclusions that State Farm's estimates "were off by almost 50%" and "30%" respectively. (Doc. 16 at ¶¶ 1, 2.) Accordingly, Mr. Lee and Mr. Novack's opinion testimony are excluded from trial.
B. Cary Shulund
Plaintiffs' disclosure provides that "Mr. Shulund will opine that he reviewed the initial repair estimates of [State Farm]'s repair experts'... and found their assumptions and cost of repairs for general construction of the Plaintiff's [sic] home to be inaccurate and inappropriate." (Doc. 16 at ¶ 3.) Unlike the disclosure for both Mr. Lee and Mr. Novak, Mr. Shulund's disclosure notes that "he reviewed Dayspring's estimates, reviewed the site within weeks of the fire, and assisted in providing the information for a bid from Tony Laslovich Construction." (Id. ) Mr. Shulund has factual knowledge regarding the bid process similar to the way in which a treating physician may have an opinion formed during the course of treatment. Cf. Goodman, 644 F.3d at 825. Therefore, these opinions are admissible at trial as long as the requirements of Rule 26(a)(2)(C) are met, i.e., that the disclosure identifies the subject matter of the testimony and the facts and opinions that will be offered. See Cooke v. Town of Colo. City, 2013 WL 551508, at *5 (D. Ariz. Feb. 13, 2013) ("An opposing party should be able (and be entitled) to read an expert disclosure, determine what, if any, adverse opinions are being proffered and make an informed decision as to whether it is necessary to take a deposition and whether a responding expert is needed."). Because Mr. Shulund's disclosure adequately outlines the subject matter of his testimony - i.e., the Laslovich bid - and summarizes the facts and opinions related to the bid, Mr. Shulund may testify to his opinions in this area at trial.
However, like a treating physician whose opinion testimony pursuant to Rule 26(a)(2)(C) is limited to opinions formed during the course of treatment, Goodman, 644 F.3d at 826, Mr. Shulund's expert opinions in this case are limited to those relating to and arising from the Laslovich Construction bid. Any additional information falls outside the scope of the Rule 26(a)(2)(C) disclosure and would only be allowed at trial had an expert report been provided. Fed.R.Civ.P. 26(A)(2)(B); see also Goodman, 644 F.3d at 826 (holding that expert reports were required for those opinions provided by treating physicians that went "beyond the scope of the treatment rendered"). In the absence of an expert report, the remainder of Mr. Shulund's testimony is properly excluded from trial because Plaintiffs have failed to show their lack of compliance with Rule 26(a)(2)(B) was substantially justified or harmless. Fed.R.Civ.P. 37(c)(1). Accordingly, Mr. Shulund will be allowed to offer his opinions regarding the Laslovich Construction bid process at trial. Any additional opinions are excluded.
C. Mark Edgell
Similar to Mr. Shulund, portions of Mark Edgell's expert disclosure are comparable to a treating physician for purposes of Rule 26(a)(2)(C). Mr. Edgell prepared a bid to rebuild the home following the fire, (Doc. 16 at ¶ 4), and has factual knowledge regarding this process, cf. Goodman, 644 F.3d at 825. Mr. Edgell's disclosure adequately discloses a bid process as the subject matter of his expected testimony and summarizes the facts and opinions as they relate to this bid process pursuant to Rule 26(a)(2)(C); those opinions may be offered at trial. ...