United States District Court, W.D. Kentucky, Louisville Division
JAMES H. POGUE, Plaintiff,
v.
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, Defendant.
MEMORANDUM OPINION AND ORDER
COLIN
LINDSAY MAGISTRATE JUDGE
This
matter is before the Court on a motion to exclude what
Plaintiff James H. Pogue ("Pogue") describes as an
untimely rebuttal report by an expert witness. In the motion
to exclude (DN 115), Pogue contends that Defendant The
Northwestern Mutual Life Insurance Company
("Northwestern Mutual") violated the operative
scheduling order by producing a rebuttal expert report after
the deadline for rebuttal experts had passed. Northwestern
Mutual filed a response and Pogue filed a reply. (DN 116,
121.) The motion to exclude is now ripe for review.
BACKGROUND
This
action arises from Northwestern Mutual's denial of a
disability insurance claim by Pogue, a physician. Due in
large part to a number of discovery-related disputes in this
case, the scheduling order has been modified on several
occasions. At times, the scheduling orders themselves have
engendered disagreements, particularly in relation to the
deadline for rebuttal experts. The memorandum opinion entered
on December 21, 2016 by Senior Judge Charles R. Simpson, III
provides background information on that issue. In that
opinion and the accompanying order (DN 118, 119), Judge
Simpson denied Pogue's objections (DN 99) to the
Magistrate Judge's July 29, 2016 amended scheduling order
(DN 96), and the rebuttal expert deadline established therein
remained in effect. Specifically, the amended scheduling
order required both parties to disclose rebuttal experts, if
any, no later than August 8, 2016. (DN 96 at 2.) The same
deadline applied for Rule 26(e) supplemental
disclosures.[1] (Id.) Pogue asserts in his motion
to exclude that Northwestern Mutual violated the amended
scheduling order by disclosing a rebuttal expert after the
August 8, 2016 deadline.
1.
The Motion to Exclude
Pogue
contends that he complied with the amended scheduling order
by disclosing his rebuttal expert report and supplementing
his discovery responses on or before August 8, 2016. (DN 115
at 1.) According to Pogue, Northwestern Mutual merely
supplemented its Rule 26(e) disclosure and its Rule 26(a)(1)
initial disclosures; it did not disclose a rebuttal expert
report prior to the August 8, 2016 deadline, and further, it
did not inform the Court during an August 17, 2016 status
conference of any ongoing issues related to rebuttal experts.
(Id. at 2 (citing DN 104 (report and order on August
17, 2016 status conference)).) Instead, according to Pogue,
on September 16, 2016, Northwestern Mutual sent to
Pogue's counsel a rebuttal expert report from Sara
Swanson, PhD, ABPP ("Dr. Swanson"), one of
Northwestern Mutual's expert witnesses. (Id.)
Pogue contends that Dr. Swanson's rebuttal report should
be excluded from evidence, along with any testimony related
to or based on her rebuttal report, due to its untimely
nature. (Id.)
Pogue
argues that Northwestern Mutual must show that providing its
rebuttal expert report untimely was harmless, and that it has
not done so. Specifically, Pogue argues that it is to permit
Northwestern Mutual to use the untimely report would
"requir[e] [him] to now question Swanson [and take
further, related discovery] - after discovery is closed -
[which] would do nothing more than increase the cost and
further delay the litigation." (Id. at 2.)
Pogue contends that the opinions expressed by Dr. Swanson in
the rebuttal expert report were not included in her initial
expert report, and that Northwestern Mutual did not
supplement that report. Therefore, he concludes, the Court
should not permit Northwestern Mutual to use the rebuttal
expert report in any way in this case.
Pogue
urges the Court to reject any argument by Northwestern Mutual
that Dr. Swanson's report was merely an addition to the
claim file and not a rebuttal expert report. Pogue concedes
that Northwestern Mutual has an ongoing duty to investigate
Pogue's claim for disability benefits, but he claims that
Dr. Swanson's report was created solely for purposes of
this litigation, not merely to supplement the claim file. (DN
115 at 5.) In support of this position, Pogue points to the
following factors: (1) the report was presented in the form
of a letter addressed to counsel for Northwestern Mutual in
this litigation; (2) Dr. Swanson's language in the report
shows that it was created at defense counsel's request;
(3) Dr. Swanson is employed by an entity separate from
Northwestern Mutual; and (4) the contents of the report show
that it was created solely to rebut Pogue's rebuttal
expert report. (Id. at 5-6.) Finally, Pogue argues
that the rebuttal report goes beyond the scope of
Northwestern Mutual's Rule 26 expert disclosure and Dr.
Swanson's original expert report.
2.
Northwestern Mutual's Response
Northwestern
Mutual filed a short response (DN 116). It argues that
Pogue's rebuttal expert report, produced by Michael H.
Cecil, Psy. D., HSPP ("Dr. Cecil"), contains
opinions that are not reflected in or differ from all other
medical records in this case, including records produced by
Pogue's treating physicians. (Id. at 1.)
Specifically, according to Northwestern Mutual, "Dr.
Cecil opined that mental restrictions prevent Pogue[] from
practicing medicine and that such restrictions are
attributable to 'brain trauma' that has never been
documented, reported, described, or identified in any of
Pogue's treatment records." (Id.)
Northwestern Mutual asserts that Pogue's longtime
treating physician "has specifically acknowledged that
he has no reason to believe that Pogue ever suffered from any
sort of traumatic brain injury;" that Dr. Cecil did not
take a history from Pogue that indicated any history of
traumatic brain injury; and that Pogue has never made a
disability claim related to head trauma or mentioned it in
any claims materials submitted to Northwestern Mutual.
(Id. at 1-2.)
Northwestern
Mutual asserts that after it received Dr. Cecil's report,
it forwarded the report to Dr. Swanson, who it describes as
having "provided Northwestern Mutual with reports both
in connection with the claims determination and as an expert
witness in the instant litigation." (DN 116 at 2.)
Northwestern Mutual insists that Dr. Swanson's letter is
not a rebuttal expert report, but rather, it is merely an
update to the claim file due to the new theory contained in
Dr. Cecil's report. Nonetheless, Northwestern Mutual goes
on to state that "[i]t is worth noting, however, that
Dr. Swanson's previous reports and Northwestern
Mutual's expert witness disclosures did not mention Dr.
Swanson's assessment of Dr. Cecil's report because
Dr. Cecil's opinions were not provided to Northwestern
Mutual until August 8, 2016." (Id.) Therefore,
Northwestern Mutual's position is that it did not have
reason to consider the issue of head trauma as it may relate
to Pogue's disability claim until the issue was raised by
Dr. Cecil. Northwestern Mutual closes by arguing that because
"Dr. Cecil is the first and only medical provider who
has identified traumatic brain injury as a factor in
Pogue's condition[, ] [n]either Northwestern Mutual nor
its experts should be prevented from pointing that fact out
at trial." (Id. at 3.)
3.
Pogue's Reply
In
reply, Pogue reiterates his arguments from the motion to
exclude. He contends that Northwestern Mutual disregarded
orders of this Court by issuing a rebuttal expert report over
a month after the applicable deadline had passed, and that
Northwestern Mutual has not demonstrated any justification or
evidence of harmlessness in relation to this action. (DN 121
at 2.) Pogue argues that Northwestern Mutual does not and
cannot refute his arguments as to ...