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Pogue v. Northwestern Mutual Life Insurance Co.

United States District Court, W.D. Kentucky, Louisville

September 22, 2017

JAMES H. POGUE PLAINTIFF
v.
NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY DEFENDANT

          MEMORANDUM OPINION

          CHARLES R. SIMPSON III, SENIOR JUDGE.

         I. Introduction

         This 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.

         II. Case Background

         Pogue 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.

         Pogue 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.

         After 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.

         In 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.

         Northwestern 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.

         On 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 neuropsychological deficits.
(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.

         Northwestern 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 Evidence 702.

         III. Legal Standard

         Federal 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 ...


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