ERIC P. VON WIEGEN and PAMELA VON WIEGEN, Plaintiffs,
SHELTER MUTUAL INSURANCE COMPANY, Defendant.
MEMORANDUM OPINION AND ORDER
DANNY C. REEVES, District Judge.
This matter is pending for consideration of Plaintiffs Eric P. von Wiegen's and Pamela von Wiegen's motions to exclude Defendant Shelter Mutual Insurance Company's ("Shelter") expert witness. [Record Nos. 32, 36] For the reasons set forth below, the plaintiffs' motions will be denied.
This case arises out of an automobile accident involving Plaintiff Eric von Wiegen that occurred on July 9, 2010. [Record No. 1-1] Mr. von Wiegen claims that he was injured when his car was rear-ended by a vehicle operated by another driver. Because the alleged injuries exceeded the insurance coverage of the other driver, after settlement between Mr. von Wiegen and the other driver, the plaintiffs submitted a claim under their underinsured motorist ("UIM") policy issued by Shelter.
The plaintiffs have asserted two claims in this action. First, they contend that Shelter owes them UIM benefits under the policy. Second, they claim that Shelter acted in bad faith in adjusting their UIM claim. The plaintiffs seek future medical expenses, future pain and suffering, and lost wages. Mr. von Wiegen claims that, for several months after the accident, he was unable to continue his schedule as an attorney. Thus, he seeks to recover lost wages as a result of the injury. [Record No. 36, p. 3]
In 2012, Shelter engaged Calvin D. Cranfill, CPA/ABV/CFF, as a forensic accountant, to review the financial information pertaining to Mr. von Wiegen's claims. [Record No. 21-1, p. 1] At that time, Cranfill informed Shelter that he was unable to estimate the economic loss of Mr. von Wiegen (an attorney who worked primarily on a contingency-fee basis) based on the information provided, and requested additional information. [ Id. ] The parties dispute the extent to which Shelter attempted to obtain that information from the plaintiffs. Shelter has provided e-mails from October and November of 2012, in which counsel for the plaintiffs stated that he was not "inclined to create or prepare documents or other information requested by your accountant." [Record No. 47-8] The plaintiffs apparently contacted an economist/accountant of their own, who did not believe that additional information was necessary to calculate the amount of lost wages. [Record Nos. 47-5, 47-6]
On September 24, 2013, Shelter timely-filed its Rule 26 Expert Disclosure, identifying Mr. Cranfill as its expert witness. [Record No. 21] Shelter stated that Mr. Cranfill would provide testimony "concerning his review of financial information provided by Plaintiffs, the information required to accurately assess economic loss, if any, and his request for additional financial information." [Record No. 21] Mr. Cranfill "reviewed Plaintiff[s'] financial information in an effort to determine the amount of the economic loss, if any, sustained as a result of the July 9, 2013" accident. [Record No. 21-1, p. 1] Shelter also disclosed that Mr. Cranfill disagreed with the conclusions of plaintiffs' expert for a variety of reasons, and would testify to that effect. [Record No. 21-2]
The plaintiffs have filed two motions to exclude the defendant's expert: a motion to exclude because the defendant allegedly did not comply with the Court's Scheduling Order and Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure, and a motion in limine under Rule 702 of the Federal Rules of Evidence. [Record Nos. 32, 36]
Under the Federal Rules of Civil Procedure, an expert must provide a report that contains:
(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications authored in ...