United States District Court, W.D. Kentucky, Louisville
JAMES H. POGUE PLAINTIFF
NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY DEFENDANT
CHARLES R. SIMPSON III, SENIOR JUDGE.
matter is before the court on defendant Northwestern Mutual
Life Insurance Company's (“Northwestern
Mutual”) motion to exclude plaintiff James H.
Pogue's (“Pogue”) rebuttal expert opinions
and related testimony. ECF No. 124-1. For the reasons below,
the court will grant the motion.
is a physician who previously practiced medicine in
Nashville, Tennessee. ECF No. 124-1, p. 2. Pogue filed suit
against Northwestern Mutual in 2014, claiming breach of
contract, breach of the duty of good faith and fair dealing,
violations of the Unfair Settlement Practices Act, and
violations of the Consumer Protection Act, all based on the
insurance company's denial of his long term disability
claim. Pl.'s Compl., ECF No. 1-2, ¶¶ 9-26.
submitted a request for disability benefits to Northwestern
Mutual dated April 28, 2013. ECF No. 124-4, p. 3. In his
request, Pogue stated that he suffered from a “severe
anxiety disorder” and that “on November 9, 2012
[he] had a total nervous breakdown and could no longer think
clearly enough to practice medicine.” Id. He
also stated that he suffered from “severe tinnitus,
blurred vision, abdominal pain, dizziness, fatigue, and
[headaches]” of an undetermined cause. Id.
Pogue noted in his request that he “voluntarily
surrender[ed] his [medical] license due to a feeling of
personal incompetence to handle work stresses as of Nov. 9,
2012.” Id. at 7.
reviewing Pogue's request, Northwestern Mutual issued a
denial letter on November 9, 2014, stating that it did
“not find proof of disability” and believed that
Pogue “made intentional, and even fraudulent,
misrepresentations throughout [his] claim in order to deceive
Northwestern Mutual into providing benefits. . .” ECF
No. 124-5, p. 8. The insurance company pointed to several
discrepancies in the information Pogue provided. Of
particular significance was a decision by the Tennessee Board
of Medical Examiners dated November 20, 2012-less than two
weeks after Pogue's alleged nervous breakdown-suspending
Pogue's medical license due to his improper prescribing
of controlled substances to patients and family members.
Id. at 6. Northwestern Mutual referred to
Pogue's insurance contract, which states that
“there will be no benefits for a disability or loss
that results from or is caused by or contributed to by the
suspension, revocation, or surrender of a professional or
occupational license or certificate.” Id. at
8. Northwestern Mutual concluded that “although [Pogue]
may [have had] a nervous breakdown on November 9, 2012 . . .
[it] was unable to establish proof that, apart from [his]
licensing issues, [he had] been unable to perform the duties
of [his] occupation because of a disabling psychiatric
illness.” Id. Pogue appealed this denial
twice, and in both instances Northwestern Mutual upheld the
claim denial. ECF No. 117-4; ECF No. 117-5.
anticipation of trial, Pogue provided Northwestern Mutual
with his expert disclosures on October 15, 2015. ECF No.
129-3. He indicated that he anticipates calling on Dr. Roy
Asta, his treating psychiatrist, and Dr. Bracken Lewis, his
treating physician, to testify. Id. The disclosure
states that “[e]ach of these medical providers is
expected to provide expert medical opinions that
[Pogue's] physical and mental restrictions and
limitations prevent [him] from performing each of the
principal duties of a medical doctor.” Id.
Mutual then disclosed its seven expert witnesses on February
15, 2016. ECF No. 47-2. Two of these experts, Dr. Dennis
Buchholz and Dr. Sara Swanson, are neuropsychologists.
Id. Dr. Buchholz was retained by Northwestern Mutual
in August 2013 to conduct neuropsychological testing on Pogue
in connection with his claim and will testify as to the
results and his conclusions. Id. at 4. Dr. Swanson
was retained by Northwestern Mutual in anticipation of
litigation and will testify to “her opinion that
[Pogue] has no cognitive limitations or impairments that
[prevent] him from performing his occupational duties as a
physician.” Id. at 2.
August 8, 2016, Pogue disclosed his rebuttal expert witness,
Dr. Michael Cecil (“Dr. Cecil”). ECF No. 128-2.
The disclosure states that Dr. Cecil has been retained to
provide his “expert medical opinion as to Dr.
Pogue's ability to engage in the duties of a physician
from November 2012 to date.” ECF No. 128-3, ¶ 2.
In his expert report, Dr. Cecil concludes that:
(1) Dr. Pogue should be regarded as an individual with
moderate brain functioning disability.
(2) Dr. Pogue is not capable of returning to his previous
position as a physician given his significant
(3) The etiology of Dr. Pogue's functional limitations is
organic and physical in nature, caused by brain trauma.
(4) Dr. Pogue's functional limitations, preventing him
from performing the duties of a physician, have been present
since at least November 9, 2012. Id. at ¶ 37.
Mutual now moves to exclude Dr. Cecil's expert testimony,
claiming that it is outside the scope of rebuttal testimony
under Federal Rule of Civil Procedure 26(a)(2)(D)(ii), or
alternatively, that it is unreliable under Federal Rule of
Rule of Civil Procedure 26(a)(2)(D)(ii) governs the scope of
rebuttal expert testimony. This Rule describes rebuttal
expert testimony as evidence “intended solely to
contradict or rebut evidence on the same subject
matter” discussed by another party's expert
witness. Fed. R. Civ. P 26(a)(2)(D)(ii). There is little
guidance on what constitutes ‘the same subject matter,
' but courts have “been reluctant to narrowly
construe the phrase . . . beyond its plain language.”
T.C. Systems, Inc. v. Town of Colonie, New York, 213
F.Supp.2d 171, 180 (N.D.N.Y July 19, 2002). Rebuttal experts
can use “new methodologies” to refute the
opinions of other experts. Park West Radiology v.
Carecore Nat. LLC, 675 F.Supp.2d 314, 316 (S.D.N.Y. Nov.
19, 2009). However, rebuttal experts cannot merely supplement
the opinions of experts from the party's case-in-chief or
“advance new arguments or new evidence” for the
case. Ma ...