Summary
In George, the court rejected the suggestion that a provider could testify as to the reasonableness and necessity of medical bills if a foundation is laid that the providers have knowledge of their billing practices.
Summary of this case from Cope v. Auto-Owners Ins. Co.Opinion
Civil Action No. 18-cv-01663-PAB-SKC
01-02-2020
JOHN GEORGE, Plaintiff, v. METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant.
ORDER
This matter is before the Court on Defendant's Motion to Exclude the Testimony of John Kezer Pursuant to FRE 702 [Docket No. 47], Defendant's Motion to Exclude Certain Testimony of Plaintiff's Medical Experts Pursuant to FRE 702 [Docket No. 48], and Plaintiff's Motion to Exclude Testimony of Dale C. Crawford Pursuant to Fed. R. Evid. 702 [Docket No. 52].
I. BACKGROUND
This case involves underinsured motorist coverage for injuries allegedly sustained in an automobile accident. Plaintiff John George that, on May 11, 2012, he was injured when his car was rear-ended by another driver ("the tortfeasor"). Docket No. 2 at 1, ¶¶ 1, 4. Plaintiff alleges that the cost of treating his injuries exceeds the tortfeasor's $25,000 in bodily injury insurance coverage. Id. at 2-3, ¶¶ 16-18. More specifically, plaintiff claims that his past medical bills, alone, totaled approximately $67,346, with future medical bills estimated at $300,000. Id. at 2, ¶ 16; Docket No. 69 at 2. Plaintiff ultimately received $100,000 from the tortfeasor's insurance company. Docket No. 2 at 3, ¶ 20. Plaintiff then sent his insurer, Metropolitan Property and Casualty Insurance Company ("defendant"), a request for underinsured motorist benefits. Id., ¶ 22. Defendant allegedly denied coverage, stating that plaintiff had been fully compensated by the bodily injury settlement with the tortfeasor's insurer. Id., ¶ 32.
Plaintiff sued defendant in the District Court for the City and County of Denver, Colorado on May 24, 2018. Docket No. 2. On June 29, 2018, defendant removed the case to federal court. Docket No. 1. Plaintiff's complaint asserts claims for breach of contract, common law bad faith breach of an insurance contract, and unreasonable delay and denial of insurance benefits under Colo. Rev. Stat. § 10-3-1115. Docket No. 2 at 4-5.
Defendant claims that, on October 25, 2019, defendant paid plaintiff the UIM policy limit and, as a result, plaintiff's "breach of contract claim is now moot." Docket No. 93 at 1. Plaintiff has not withdrawn his breach of contract claim.
Pursuant to Fed. R. Civ. P. 26(a)(2), plaintiff disclosed John Kezer as an "expert on insurance industry standards," Docket No. 47-1 at 6, and Drs. Bradley Vilims, W. David Luce, and Evan Katz as non-retained healthcare experts who have treated plaintiff. Id. at 8-12. Defendant disclosed Dale C. Crawford "as an expert witness in insurance industry standards to rebut the opinions of Mr. Kezer." Docket No. 52 at 2. Each party has now filed motions to exclude expert testimony under Rule 702 of the Federal Rules of Evidence. Docket Nos. 47, 48, 52, and 54.
II. LEGAL STANDARD
Rule 702 of the Federal Rules of Evidence provides that:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.Fed. R. Evid. 702. As the rule makes clear, while required, it is not sufficient that an expert be qualified based upon knowledge, skill, experience, training, or education to give opinions in a particular subject area. Rather, the Court m ust "perform[] a two-step analysis." 103 Inv'rs I, L.P. v. Square D Co., 470 F.3d 985, 990 (10th Cir. 2006). After determining whether the expert is qualified, the proffered opinions must be assessed for reliability. See id.; see also Fed. R. Evid. 702 (requiring that the testimony be "based on sufficient facts or data," be the "product of reliable principles and methods," and reflect a reliable application of "the principles and methods to the facts of the case").
Rule 702 imposes on the district court a "gatekeeper function to 'ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.'" United States v. Gabaldon, 389 F.3d 1090, 1098 (10th Cir. 2004) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993)). To perform that function, the Court must "assess the reasoning and methodology underlying the expert's opinion, and determine whether it is both scientifically valid and applicable to a particular set of facts." Dodge v. Cotter Corp., 328 F.3d 1212, 1221 (10th Cir. 2003) (citing Daubert, 509 U.S. at 592-93). Where an expert witness relies on experience, the expert "must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts." United States v. Medina-Copete, 757 F.3d 1092, 1104 (10th Cir. 2014) (quoting Fed. R. Evid. 702 advisory committee's notes to 2000 amendments). When examining an expert's method, however, the inquiry should not be aimed at the "exhaustive search for cosmic understanding but for the particularized resolution of legal disputes." Daubert, 509 U.S. at 597. It is the specific relationship between an expert's method, the proffered conclusions, and the particular factual circumstances of the dispute that renders testimony both reliable and relevant.
In addition to the witness having appropriate qualifications and methods, "the proponent of the witness' opinions must demonstrate that the process by which the witness derived his or her opinions is reliable." United States v. Crabbe, 556 F. Supp. 2d 1217, 1220 (D. Colo. 2008). "[T]he trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). Ultimately, the test requires that the expert "employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Id.
While the proponent of the challenged testimony has the burden of establishing admissibility, "the proffer is tested against the standard of reliability, not correctness," see Allstate Sweeping, LLC v. City & Cty. of Denver, No. 10-cv-00290-WJM-MJW, 2011 WL 2173997, at *3 (D. Colo. June 2, 2011); the proponent need only prove that "the witness has sufficient expertise to choose and apply a methodology, that the methodology applied was reliable, that sufficient facts and data as required by the methodology were used and that the methodology was otherwise reliably applied." Crabbe, 556 F. Supp. 2d at 1221.
Assuming that the standard for reliability is met, the Court must also ensure that the proffered testimony will assist the trier of fact. See Kumho Tire, 526 U.S. at 156-57; United States v. Rodriguez-Felix, 450 F.3d 1117, 1122-23 (10th Cir. 2006). "Relevant expert testimony must logically advance[] a material aspect of the case and be sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute." United States v. Garcia, 635 F.3d 472, 476 (10th Cir. 2011) (quotations and citations omitted). In assessing whether expert testimony will assist the trier of fact, the Court should also consider "whether the testimony 'is within the juror's common knowledge and experience,' and 'whether it will usurp the juror's role of evaluating a witness's credibility.'" Id. at 476-77 (quoting Rodriguez-Felix, 450 F.3d at 1123).
III. ANALYSIS
A. Plaintiff's Medical Experts
First, defendant moves to exclude "certain testimony by Plaintiff's medical experts, Dr. Vilims, Dr. Katz and Dr. Centeno." Docket No. 48 at 1.
1. Dr. Bradley Vilims
Defendant seeks to exclude three opinions of Dr. Vilims: (1) that, in the subject motor vehicle accident, the brunt of the force from the impact was absorbed by a trailer hitch before the impact forces were transferred to the frame of plaintiff's vehicle and, moreover, that these forces were sufficient to bend the vehicle frame; (2) that insurance companies use certain tactics to interfere with, delay, and deny treatment for injured claimants and that Dr. John Douthit, one of defendant's experts, engaged in these tactics; and (3) that Dr. Douthit's statements "represent laziness" and the "pursuit of remaining willfully ignorant" so that defendant and other insurance companies will continue to "purchase" his opinions. Docket No. 48 at 7-8. Plaintiff does not oppose plaintiff's challenges to the second and third opinions and agrees not to elicit these opinions from Dr. Vilims at trial. See Docket No. 59 at 6-7. Thus, defendant's motion will be granted to the extent that it seeks to exclude those opinions.
The remaining challenged opinion involves the impact force felt by the trailer hitch and plaintiff's vehicle during the accident. Defendant argues that Dr. Vilims is not qualified to testify on this subject because his curriculum vitae is "devoid of any experience or education in the field of engineering which would qualify him to testify to such opinions." Docket No. 48 at 8. Plaintiff contends that Dr. Vilims is qualified to render such opinion because treating physicians "routinely opine on injury causation based on medical knowledge, physical examination, and patient histories." Docket No. 59 at 7. Specifically, plaintiff asserts that, because "Dr. Vilims routinely diagnoses and treats patients for injuries arising out of motor vehicle accidents," he is "qualified to consider the force and impact of an accident as part of his medical diagnosis and treatment." Id. at 8.
Plaintiff relies upon Etherton v. Owners Insurance Co., 35 F. Supp. 3d 1360 (D. Colo. 2014), wherein the Court rejected a party's attempt to challenge a physician's causation expert as unreliable. In that case, the defendant sought to exclude a physician's opinion that the plaintiff's injuries were entirely caused by the subject car accident on the basis that the physician was not qualified to render such opinion. Id. at 1364. The Court denied the motion to exclude, recognizing that physician causation opinions based on medical knowledge, physical examination, and patient histories "are routinely admitted in federal courts" because this methodology - using medical expertise, physical examination, and the patient's history - was widely accepted among the relevant scientific community. Id. at 1372 (citing cases).
But contrary to plaintiff's assertion, the opinion in question is not one of medical causation. Instead, defendant challenges Dr. Vilims's statement regarding how and where the impact forces from the accident were transferred to plaintiff's vehicle. See Docket No. 48 at 7; Docket No. 48-4 at 1. Such an opinion could not be formed based on Dr. Vilims's medical knowledge, a physical examination of plaintiff, or plaintiff's medical history. Moreover, there is no indication in Dr. Vilims's curriculum vitae that he has any specialized knowledge or training in engineering, biomechanics, or accident reconstruction. See Docket No. 48-3. Although plaintiff argues that Dr. Vilims has "routinely diagnose[d] and treat[ed] patients for injuries arising out of motor vehicle accidents and is qualified to consider the force and impact of an accident as part of his medical diagnosis and treatment," Docket No. 59 at 8, an opinion regarding whether the accident could have caused plaintiff's injuries is different from opinions regarding forces that acted upon, and caused damage to, plaintiff's automobile. For these reasons, the Court finds that Dr. Vilims is not qualified to testify as to Opinion 1. Cf. King v. Allstate Ins. Co., No.11-cv-00108-WJM-BNB, 2013 WL 3943607, at *2 (D. Colo. July 31, 2013) (excluding physician's opinion whether insurance company acted as a reasonable insurer on the basis that he was not qualified to render such opinion because "[t]here [was] no evidence that [the physician] ha[d] any experience as an insurance adjuster or in any other capacity within the insurance industry.").
The other cases that plaintiff cites - Laski v. Bellwood, 1997 WL 764416, at *3 (6th Cir. Nov. 26, 1997); Rivera v. United States, 2012 WL 3132667 at *12-*13 (S.D.N.Y. July 31, 2012); and Santoro v. Signature Constr., Inc., 2002 WL 31059292 at *4 (S.D.N.Y. Sept. 16, 2002) - are similarly inapplicable, as each considers whether a treating physician can provide general causation testimony, not testimony regarding the physics of a car accident.
2. Dr. Evan Katz
Defendant next moves to exclude the following opinions made by Dr. Katz, a licensed chiropractor: (1) that a "trailer hitch does not absorb the impact like a bumper is designed to[,] as it is more rigid"; (2) that certain healthcare expenses that plaintiff expenses incurred were reasonable and necessary and were caused by the subject collision; (3) that the expenses incurred for certain medical treatment plaintiff received from five different healthcare providers were reasonable, usual, and customary; and (4) that plaintiff's medical bills were related to the accident and were reasonable and necessary and that the charges for said treatment were reasonable, usual, and customary. Docket No. 48 at 9.
Plaintiff agrees that Dr. Katz "will only testify about the medical records he reviewed while he was providing treatment to [plaintiff] and the charges for his own services." Docket No. 59 at 7. "[W]hen a witness is asked to review the records of another health care provider in order to formulate his or her own opinion on the appropriateness of care . . . the witness is considered 'retained or employed' under Rule 26(a)(2)(B) and must file a written report accordingly." Hermann v. Hartford Cas. Ins. Co., No. 11-cv-03188-REB-MEH, 2012 WL 5569769, at *3 (D. Colo. Nov. 15, 2012). Dr. Katz is not considered a retained or employed expert witness under Rule 26, and has not filed an expert report. To the extent that defendant seeks to exclude Dr. Katz's opinions on other health care provider's records regarding the appropriateness of their care, defendant's motion is granted.
First, the Court finds that Dr. Katz is not qualified to opine whether a trailer hitch can absorb an impact in the same manner as a bumper. While Dr. Katz's curriculum vitae indicates that he has taken continuing education courses on whiplash and motor vehicle accidents, see Docket No. 59-1 at 2, it does not indicate any knowledge or training in engineering or accident reconstruction. While plaintiff argues that "one does not have to have training in biomechanical engineering to know that a trailer hitch is more rigid than a bumper," Docket No. 59 at 9, Dr. Katz purports to opine, not as to the relative rigidity of a bumper versus a trailer hitch, but whether these two parts absorb impacts similarly. Dr. Katz does not possess the qualifications to do so. For the reasons set out above in the exclusion of Dr. Vilims's similar opinion, defendant's motion to exclude is granted to the extent that it seeks to exclude Dr. Katz's Opinion 1.
The three remaining opinions that defendants seeks to exclude are sufficiently similar to address together. Opinions 2, 3, and 4 address four subjects: (1) the reasonableness of the medical expenses related to Dr. Katz's treatment; (2) the reasonableness of the medical bills resulting from other physicians' treatment; (3) whether plaintiff is likely to incur future health care costs; and (4) whether plaintiff incurred health care expenses caused by the subject collision. Docket No. 48 at 9. Defendant argues that Opinions 2, 3, and 4 "triggered the requirements of Fed. R. Civ. P. 26(a)(2)(B), and [plaintiff] failed to meet the requirements for such opinions." Id. at 10.
Rule 26 requires that expert disclosures "must be accompanied by a written report - prepared and signed by the witness - if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony." Fed. R. Civ. P. 26(a)(2)(B). "Ordinarily, physicians providing a party with medical treatment are designated as non-retained and, thus, are exempt from the report requirement," Hermann, 2012 WL 5569769, at *3, because "[t]heir testimony is based upon their personal knowledge of the treatment of the patient and not information acquired from outside sources for the purpose of giving an opinion in anticipation of trial." Trejo v. Franklin, No. 04-cv-02523-REB-MJW, 2007 WL 2221433, at *1 (D. Colo. July 30, 2007) (quoting Baker v. Taco Bell Corp., 163 F.R.D. 348, 349 (D. Colo. 1995)). "It is the substance of the expert's testimony, not the status of the expert, which will dictate whether a Rule 26(a)(2)(B) report will be required." Id. (quotations, alterations, and citations omitted). "However, when a witness 'opines as to causation, prognosis, or future disability, the physician is going beyond what he saw and did and why he did it . . . and [is] giving an opinion formed because there is a lawsuit.'" Hermann, 2012 WL 5569769, at *3 (quoting Griffith v. Ne. Ill. Reg'l Commuter R.R. Corp., 233 F.R.D. 513, 518 (N.D. Ill. 2006)). When a treating physician will testify beyond his or her knowledge of the care he or she provided to the patient, the witness must file a written report, id., that contains a complete statement of the witness's opinions, the facts and data supporting such opinions, the witness's qualifications, a list of all other cases in which the witness has testified as an expert in the past four years, and a disclosure of the compensation received by the expert. Fed. R. Civ. P. 26(a)(2)(B)(i)-(vi).
In determining whether an expert disclosure has complied with Rule 26(a)(2)(B), "[t]he party moving to strike the witness bears the initial burden of showing that the disclosing party failed to produce a written report under Rule 26(a)(2)(B)." Davis v. GEO Grp., No. 10-cv-02229-WJM-KMT, 2012 WL 882405, at *2 (D. Colo. Mar. 15, 2012). Once the movant has met this burden, "[t]he burden then shifts to the disclosing party to demonstrate that the witness is not retained or specially employed and, thus, no report was required." Id. Because defendant has met its initial burden of demonstrating that plaintiff did not produce a Rule 26 written report from Dr. Katz, see Docket No. 48 at 10; Docket No. 48-1 at 11-19 (demonstrating that plaintiff's expert disclosure of Dr. Katz did not include list of publications, list of prior testimony, or statement of compensation), plaintiff must demonstrate, for each of the four subjects, that Dr. Katz is not a retained witness and, as a result, no report was required.
a. The reasonableness of Dr. Katz's medical bills
Defendant seeks to exclude Dr. Katz's opinions that Dr. Katz's medical bills to plaintiff were reasonable, usual, and customary on the basis that such opinions go beyond the scope of Dr. Katz's treatment of plaintiff and therefore require an expert report under Rule 26(a)(2). Docket No. 48 at 9-10. Plaintiff asserts that, "[b]efore testimony is elicited from Dr. Katz at trial about his medical bills, [plaintiff] will lay a foundation to show that he is involved in the clinic's billing practices and has personal knowledge about the charges for [plaintiff's] chiropractic treatment." Docket No. 59 at 9-10.
A non-retained treating physician's expert testimony must be limited to "his observations, diagnosis and treatment of a patient," based on "what he saw and did and why he did it." Kemp v. Webster, No. 09-cv-00295-RBJ-MJW, 2012 WL 5289573, at *2 (D. Colo. Oct 26, 2012). When the expert "go[es] beyond his personal observation or treatment of the patient," "the witness is considered retained or employed and will be required to file a written report under Rule 26(a)(2)(B)." Estate of Grubbs v. Weld Cty. Sheriff's Office, No. 16-cv-00714-PAB-STV, 2018 WL 8838810, at *1 (D. Colo. July 20, 2018) (citation and quotations omitted).
The Court concludes that testimony by Dr. Katz as to the reasonableness of his medical bills goes beyond his personal observations or treatment of plaintiff and, as a result, such opinions are "not formed as part of a treating physician's normal occupational duties." Claycomb v. Fox, 2016 WL 6092881, at *4 (Colo. Dist. Ct. Mar. 22, 2016) ("While such opinions may be within the expertise of a treating physician, they are beyond what is necessary to provide appropriate care for an injured patient."). Therefore, such opinions should have been disclosed in an expert report that complied with Rule 26. Mr. Katz did not do so. As a result, these opinions will be excluded. See Estate of Grubbs, 2018 WL 8838810, at *3.
b. The reasonableness of other physicians' medical bills
Defendant also seeks to exclude Dr. Katz's opinions that other physicians' medical charges were reasonable, usual, and customary. Docket No. 48 at 9. Plaintiff concedes that Dr. Katz will not testify about the charges billed by other physicians. Docket No. 59 at 7. Thus, any issues concerning the admissibility of such testimony appear to be resolved. In any event, for the reasons articulated above, such testimony goes beyond Dr. Katz's first-hand would require an expert report. Dr. Katz, a non-retained expert, would be precluded from offering such opinions.
c. Plaintiff's prognosis
Plaintiff seeks to introduce testimony from Dr. Katz that plaintiff "is likely to incur future health care costs for the foreseeable future." Docket No. 48-1 at 13. Plaintiff argues that Dr. Katz's prognosis opinion was "formulated and documented during the course of his treatment" of plaintiff and that Dr. Katz "formed [this] opinion[] through [plaintiff's] medical history, physical examination, and review of X-rays and other imaging studies." Docket No. 59 at 9. Defendant counters that "a written report in accordance with Fed. R. Civ. P. 26(a)(2)(B) is required when a treating physician . . . plans to offer opinions on causation, prognosis, and/or future disability." Docket No. 48 at 6.
While some cases from this district have permitted non-retained experts to testify as to prognosis, see Carbaugh v. Home Depot U.S.A., Inc., No. 13-cv-02848-REB-MEH, 2014 WL 3543714, at *3 (D. Colo. July 16, 2014); see also Washington v. Arapahoe Cty. Dep't of Social Servs., 197 F.R.D. 439, 442 (D. Colo. 2000), the majority of decisions require an expert report if the expert intends to opine on prognosis. See Kemp, 2012 WL 5289573, at *2; see also Estate of Grubbs, 2018 WL 8838810, at *1; Dedmon v. Continental Airlines, Inc., No. 13-cv-0005-WJM-NYW, 2015 WL 1040521, at *5 (D. Colo. Mar. 6, 2015); Davis, 2012 WL 882405, at *2. The report requirement is based on the fact that a treating physician's expert testimony is limited to his or her "observations, diagnosis, and treatment of a patient, i.e, 'what he [saw] and did and why he did it.'" Estate of Grubbs, 2018 WL 8838810, at *1 (quoting Davis, 2012 WL 882405, at *2).
The Court finds that Dr. Katz's opinion that plaintiff is "likely to incur future health care costs for the foreseeable future" is not based on what he saw, did, and why he did it during the course of his treatment of plaintiff, but rather was "formed because there is a lawsuit." Kemp, 2012 WL 5289573, at *2 (quoting Davis, 2012 WL 882405, at *2). Dr. Katz's opinion does not concern his own treatment of plaintiff, but rather future treatment that plaintiff may receive and the medical costs related thereto. Thus, an expert report is required under Rule 26(a)(2)(B), a report which Dr. Katz did not prepare. The Court will grant defendant's motion to the extent it seeks to exclude Dr. Katz's prognosis opinion.
d. Causation
Finally, defendant seeks to exclude Dr. Katz's opinions related to causation - i.e., opinions that plaintiff's injuries were caused by the subject collision. Docket No. 48 at 9. Similar to his argument regarding Dr. Katz's prognosis opinions, plaintiff argues that the causation opinions were formed during the course of Dr. Katz's treatment of plaintiff and, for this reason, no expert report is required. Docket No. 59 at 9. Plaintiff also contends that Dr. Katz "will only testify about the records and imaging studies he reviewed during his course of treatment, including his own records, records he reviewed from other providers such as Dr. Luce and Dr. Centeno, and radiology studies from Health Images." Id.
Causation opinions formed as a result the treating physician's own treatment of the plaintiff, and relevant to the treatment that the physician provided, do not require an expert report. See Seeley v. Home Depot U.S.A., Inc., No. 17-cv-00584-PAB-NYW, 2018 WL 4275375, at *2 n.5 (reasoning that an expert report is required when opinions "go beyond the treating physician's personal knowledge and treatment of the patient"). However, to the extent that Dr. Katz's causation opinions "rely (even in part) on the findings of other physicians," this "trigger[s] the requirements of Rule 26(a)(2)(B)" and would require an expert report. Carbaugh, 2014 WL 3543714, at *4. Accordingly, Dr. Katz's causation opinions are limited to causation opinions formed only through his treatment of plaintiff. If he relied on another doctor's causation opinion to provide his own treatment, he may reference that fact, but he may not use that opportunity to expound on the causation opinions of other doctors.
3. Dr. Christopher Centeno
Finally, defendant seeks to exclude two opinions of Dr. Centeno, which address three subjects: (1) the causation of plaintiff's injuries; (2) plaintiff's prognosis; and (3) the reasonableness of the charges incurred for the treatment plaintiff received. Docket No. 48 at 11. Like defendant's challenge to Dr. Katz's opinions, defendant argues that these opinions go beyond Dr. Centino's first-hand observations and knowledge obtained examining plaintiff and trigger the requirements of a Rule 26 expert report. Id.
Defendant claims that Dr. Centeno did not prepare a Rule 26 expert report. Docket No. 48-1 at 19-23. Thus, plaintiff must demonstrate that Dr. Centeno is not a retained witness and no report was required. Davis, 2012 WL 882405, at *2. Plaintiff argues that "Dr. Centeno developed opinions regarding causation, prognosis, [and] need for treatment during [his] care and treatment of [plaintiff], and because these opinions are documented in the medical records and expert endorsements, the opinions are properly disclosed as [] non-retained expert testimony." Docket No. 59 at 10. He states that Dr. Centeno "will not be asked to comment on the care of other providers." Id.
a. Causation
Defendant argues that Dr. Centeno's opinion on causation "goes beyond why Dr. Centeno did what he did and instead provides opinions because there is a lawsuit" and, for this reason, the opinion should be excluded due to the absence of a Rule 26 expert report. Docket No. 48 at 11. Plaintiff contends that this opinion was formed in the scope of Dr. Centeno's treatment of plaintiff - noting that this causation opinion appeared in Dr. Centeno's initial evaluation of plaintiff - because "[i]t was necessary for Dr. Centeno to . . . determine the likely cause of injury in order to recommend and render appropriate treatment." Docket No. 59 at 10. As set out above, causation opinions that are formed as a result of the physician's treatment of the patient do not require an expert report. Seeley, 2018 WL 4275375, at *2 n.5. Thus, Dr. Centeno may testify as to his own causation opinions formed during the course of his treatment of plaintiff.
b. Plaintiff's prognosis
Defendant seeks to exclude Dr. Centeno's opinions about plaintiff's "permanent physical impairment and/or permanent physical restrictions" for the same reasons it sought to exclude his causation opinions, arguing that such opinion is outside of the scope of his treatment of plaintiff. Docket No. 48 at 11. Plaintiff counters that these opinions were formed "during the course and scope of [Dr. Centeno's] treatment" of plaintiff and, as a result, no expert report is required. Docket No. 59 at 10.
The Court finds that Dr. Centeno's opinion concerning plaintiff's alleged permanent impairments would be formed in the normal course of treating plaintiff. See Carbaugh, 2014 WL 3543714, at *3 (stating that treating physicians' exemption from the report requirement, when opinions are based on personal knowledge of treatment of the patient, applies to treating physician opinions regarding prognosis based on examination of patient). Accordingly, the Court will not exclude Dr. Centeno's opinion on plaintiff's alleged permanent physical impairment or physical restrictions.
c. Reasonableness of medical bills
Finally, Defendant seeks to exclude Dr. Centeno's opinions "on the reasonableness of medical bills and charges" on the basis that these opinions are beyond the scope of opinions formed during treatment of the patient. Docket No. 48 at 11. Plaintiff does not present a counter-argument. See Docket No. 59 at 10. As set out above, opinions about the reasonableness of charges would not be formed during the normal course of a treating physician's treatment or examination of the patient. See Claycomb, 2016 WL 6092881, at *4. Thus, Dr. Centeno's opinions regarding the reasonableness of the expenses incurred by plaintiff will be excluded.
B. John Kezer
Defendant moves to exclude the report of plaintiff's insurance industry expert, John Kezer, "in its entirety" and asks that Mr. Kezer be prohibited from testifying at trial. Docket No. 47 at 2. Mr. Kezer was disclosed by plaintiff as an expert on insurance industry standards and insurance claims handling. Docket No. 58 at 2. Defendant has five general categories of objections to Mr. Kezer's opinions: (1) improper legal opinions; (2) irrelevant opinions; (3) speculative opinions without factual support; (4) opinions outside of Mr. Kezer's expertise; and (5) opinions based upon unreliable evidence. Docket No. 47 at 3.
As an initial matter, defendant's motion fails to comply with the Court's Practice Standards, which state that a Rule 702 motion "shall identify with specificity each opinion the moving party seeks to exclude." Practice Standards (Civil cases), Chief Judge Philip A. Brimmer, § III.G. While defendant gives a number of examples of the types of opinions of Mr. Kezer it wishes to exclude, it nevertheless makes a generalized challenge to Mr. Kezer's expert report in its entirety. The Court is unable to rule that Mr. Kezer's opinions should be excluded in their entirety because defendant has failed to demonstrate that each opinion set forth in Mr. Kezer's seventy-six-page report falls into one of defendant's five categories. As a result, the Court will construe defendant's motion as a challenge to the specific opinions of Mr. Kezer's that defendant lists. See, e.g., Docket No. 47 at 6.
1. Legal Opinions
Defendant first argues that Mr. Kezer improperly seeks to provide legal opinions to the jury. Docket No. 47 at 6. Plaintiff argues that, to aid the jury in understanding the facts and evidence in this case, Mr. Kezer "may permissibly refer to and apply the legal and insurance industry standards from statutes and case law to the facts of this case to opine whether [defendant's] conduct violated industry standards." Docket No. 58 at 5-6.
In some cases, such as insurance bad faith cases, expert witnesses are permitted to testify about relevant legal standards. "[A]n expert's testimony is not per se inadmissible simply because it requires discussion of the law." Amica Life Ins. Co. v. Wetz, No. 15-cv-1161-WJM-CBS, 2017 WL 897839, at *3 (D. Colo. Mar. 7, 2017). "[A] witness may properly be called upon to aid the jury in understanding the facts in evidence even though reference to those facts is couched in legal terms." Specht v. Jensen, 853 F.2d 805, 809 (10th Cir. 1988). Such testimony "is proper under Rule 702 if the expert does not attempt to define the legal parameters within which the jury must exercise its fact-finding function. However, when the purpose of testimony is to direct the jury's understanding of the legal standards upon which their verdict must be based, the testimony cannot be allowed." Id. at 809-10. Testimony that "articulates the ultimate principles of law governing the deliberations of the jury" is inadmissible." Id. at 808. While an expert may refer to the law in expressing his or her opinion, the expert "may not state legal conclusions drawn by applying the law to facts." A.E. ex rel. Evans v. Indep. Sch. Dist. No. 25, 936 F.2d 472, 476 (10th Cir. 1991) (citations omitted).
Although Mr. Kezer states in his report that he "[does] not intend to attempt to instruct the jury about the law it is to apply to this trial in its deliberations" and "only intend[s] to provide the kind of expert guidance, conclusions and opinions Colorado law expressly allows in these kinds of cases," Docket No. 47-2 at 3, the opinions set out in his report suggest otherwise. He states that it is "important to introduce the jury to, and educate the jury on, the basics of insurance - which begins with and should include the very purpose of insurance" and that, if called to testify, he would "expect and intend to use [legal citations included in his report] to educate the jury about the public policy and legislative intent behind Colorado's laws related to UM/UIM coverage." Docket No. 47-2 at 6, 7. He states that, in his opinion, "the weight and significance of the public policy, and the clarity of the intent and function of UM/UIM coverage and how it was to be evaluated and handled, . . . appears to have been disregarded by the Defendant in its handling of [plaintiff's] UIM claim." Id. at 9. He also opines that defendant "failed to meet and satisfy its duties under . . . applicable case law" and "did not meet or satisfy its duties under the UCSPA." Id. at 50.
Mr. Kezer is an expert on insurance industry standards. Docket No. 58 at 2. Therefore, he may testify as to insurance industry standards based on his experience working in the insurance industry. See O'Sullivan v. Geico Cas. Co., 233 F. Supp. 3d 917, 928 (D. Colo. 2017). Identifying insurance industry claim handling standards does not require discussion of public policy or legislative intent. Moreover, a discussion of the public policy or legislative intent may divert the jury's attention from the insurance industry standards themselves or suggest that, even if an insurance company did not violate such standards, the jury should use public policy or legislative intent to determine liability. See Gebremedhin v. Am. Family Mutual Ins. Co., No. 13-cv-02813-CMA-NYW, 2015 WL 4979742, at *6 (D. Colo. Aug. 21, 2015) (excluding insurance industry expert's opinions that "[did] not even refer to, let alone explain, industry standards"). While Mr. Kezer may briefly discuss the purpose or function of UM/UIM coverage, it must be closely tied to a discussion of insurance industry standards.
Defendant also challenges two additional opinions of Mr. Kezer's that it argues are "legal conclusions": (1) Mr. Kezer's opinion that defendant, "by its actions and inactions, failed to meet and satisfy its duties under . . . applicable case law" and (2) his opinion that defendant "did not meet or satisfy its duties under the [Unfair Claims Settlement Practices Act] because it refused to pay [plaintiff's] claim without conducting a reasonable investigation based upon all available information." Docket No. 47 at 7; Docket No. 47-2 at 50. Defendant argues that Mr. Kezer cannot "testify[] to legal conclusions, such as opinions on whether an insurer's conduct was unreasonable as a matter or law or a violation of a statute." Docket No. 47 at 7.
The Court finds that, while Mr. Kezer is permitted to testify as to insurance industry standards, and may testify that defendant's conduct did not conform with those standards, he may not "apply the legal . . . standards from statutes and case law to the facts of this case to opine whether [defendant's] conduct violated" the UCSPA or whether it complied with its duties under case law. Docket No. 58 at 6. An expert is not permitted to "state legal conclusions drawn by applying the law to facts," A.E. ex rel. Evans, 936 F.2d at 476, because "such ultimate conclusions would not be helpful to the jury and would improperly intrude on its fact-finding function." O'Sullivan, 233 F. Supp. 3d at 929 (excluding opinions that an insurance company's conduct violated the UCSPA). Therefore, Mr. Kezer may not opine whether defendant met its duties under applicable case law or violated the UCSPA, but may testify whether, in his opinion, defendant's conduct conformed with specific insurance industry standards, including ones identified in the UCSPA. See id. at 928 (ruling that expert could offer opinions whether defendant's conduct "differed, in factual terms, from the practices of other insurers" or from "relevant industry practices and standards" but could not opine about whether defendant's conduct "was unlawful or 'egregious'").
2. "Irrelevant Information"
Next, defendant asserts that Mr. Kezer "cannot testify to irrelevant information." Docket No. 47 at 8. It argues that Mr. Kezer's report "includes reference to several items that are not at issue in this case and thus, irrelevant and inadmissible under F.R.E. 402 and 403." Id. Specifically, defendant seeks to exclude (1) references to defendant's handling of plaintiff's Med Pay claim; (2) record retention requirements for insurers; (3) summaries from initial disclosures found in the claim file; and (4) summaries of depositions taken in the course of this litigation. Id. at 8-9.
First, defendant seeks to exclude Mr. Kezer's discussion of defendant's handling of plaintiff's Med Pay claim because "there are no allegations of inappropriate handling of Med Pay in the Complaint." Id. at 8. Plaintiff contends that this discussion should not be excluded because the "Med Pay claim notes . . . contain pertinent information about the circumstances of the collision and the cause, nature, and extent of [plaintiff's] injuries" and reflect that defendant "did not follow its own guidelines." Docket No. 58 at 11. But plaintiff does not identify whether the guidelines that defendant allegedly failed to follow relate to Med Pay claims only or to insurance claims generally. Whether defendant violated its Med Pay standards is not relevant to plaintiff's bad faith claim, which does not contain any Med Pay-based allegations. See Docket No. 2. Plaintiff has not established any relevant connection between this evidence and his claims. The proponent of evidence bears the burden of establishing its admissibility, see U.S. Aviation Underwriters, Inc. v. Pilatus Bus. Aircraft, Ltd., 582 F.3d 1131, 1149 (10th Cir. 2009), and plaintiff has failed to meet this burden. Discussion of defendant's handling of plaintiff's Med Pay claim will be excluded.
Defendant seeks to exclude Mr. Kezer's "discuss[ion] [of] record retention requirements for insurers" and whether "it would have been easier for him to evaluate the claim if [defendant's] records were retained in a different manner." Docket No. 47 at 8. It argues that "the ease of [Mr.] Kezer's review for his report is not a relevant fact as to whether [defendant] breached the contract or acted in bad faith on [plaintiff's] UIM claim." Id. Plaintiff counters that the issue of defendant's record retention is "highly relevant" to this case. Docket No. 58 at 11. Specifically, plaintiff notes that a medical summary completed by defendant's adjuster was absent from that adjuster's claim notes. Id. Plaintiff contends that the absence of the medical summary in the adjuster's notes undercuts her claim that she carefully reviewed all of plaintiff's medical records and will assist the jury in determining credibility and weighing the evidence. Id. The Court agrees with plaintiff. Plaintiff has established that the issue of defendant's record keeping may assist the jury in weighing the evidence or the credibility of witnesses in this case. Because this testimony is relevant, it will not be excluded.
Defendant also seeks to exclude references to "documents from the claim file[,] including [defendant's] Initial Disclosures." Docket No. 47 at 8. In his report, Mr. Kezer summarized actions taken relating to the opening of plaintiff's UIM claim. Id. While plaintiff argues that these references "tie into Mr. Kezer's chronology of [plaintiff's] claim as well as his analysis of what [defendant] did and did not do during the claim handling process," Docket No. 58 at 12, plaintiff does not explain why "Mr. Kezer's chronology" is relevant to his breach of contract or bad faith claims. Because plaintiff has not met his burden of proving the relevance of this evidence, it will be excluded. See U.S. Aviation Underwriters, 582 F.3d at 1149.
Finally, defendant seeks to exclude Mr. Kezer's "summaries of depositions . . . followed by conclusory statements without explanation of how his conclusion is reached." Docket No. 47 at 9. Plaintiff argues that Mr. Kezer's complete report demonstrates that Mr. Kezer reviews each deposition and applies the testimony to insurance industry standards. Docket No. 58 at 12. The Court agrees with plaintiff. Mr. Kezer quotes passages from deposition testimony and explains why such testimony supports his opinions. See, e.g., Docket No. 47-2 at 51-54 (Mr. Kezer's conclusion that deposition testimony supports his opinion supported by two pages of explanation). Plaintiff has demonstrated that the deposition summaries, and the opinions related thereto, are used for relevant purposes - namely, whether defendant complied with insurance industry standards. Id. As a result, exclusion is not warranted.
3. Opinions on Defendant's Intent
Defendant also challenges what it describes as Mr. Kezer's opinions on defendant's intent in making its coverage decision. Docket No. 47 at 9. Specifically, defendant challenges Mr. Kezer's opinions that (1) defendant "intentionally disregarded the contents and significance of [plaintiff's] treating providers" and (2) defendant "knowingly and intentionally, and unreasonably, ignored and failed to give unbiased consideration to [plaintiff's] treating providers' records, reports and opinions." Id. at 10. It argues that subjective opinions as to the motivations of an insurance company are inadmissible under Federal Rule of Evidence 703. Id. It also argues that this testimony can be excluded under Rule 702 because "it is contrary to the facts as shown by deposition testimony." Id. Plaintiff states that Mr. Kezer will not testify as to defendant's intent, but instead will only express the following opinions: (1) defendant did not carefully review the medical records; (2) defendant disregarded the contents of Dr. Vilims's letter from May 2, 2016; (3) defendant did not follow its own claim handling guidelines; and (4) defendant did not consider its own Advance Medical Management of Common Spinal Disc Disorders guidelines. Docket No. 58 at 13. In addition, plaintiff argues that Mr. Kezer's opinions are not contradicted by any deposition testimony. Id.
"An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect." Fed. R. Evid. 703.
A court should "exclude speculative or subjective opinions or commentary . . . or other testimony not grounded in a specific factual observation." O'Sullivan, 233 F. Supp. 3d at 927. The Court finds that the opinions identified by defendant are sufficiently grounded in a specific factual observation. In his report, Mr. Kezer opines that defendant (1) did not carefully review plaintiff's medical records, (2) intentionally disregarded the contents and significance of plaintiff's treating providers, and (3) did not follow its own claim-handling guidelines or materials. Docket No. 47-2 at 49. These opinions are supported by several pages of analysis, in which Mr. Kezer reviews plaintiff's case file, analyzes defendant's handling of his claim, and sets out the bases for his opinion. See Docket No. 47-2 at 36-49.
The Court construes defendant's statement that Mr. Kezer "will not speculate regarding [defendant's] subjective motivations" or its intent to be a concession that Mr. Kezer will not do so. Thus, defendant's motion will be granted to the extent it seeks to preclude any reference to defendant's subjective intent in handling plaintiff's claim - in other words, Mr. Kezer may not testify that defendant "intentionally disregarded" information from plaintiff's treating providers or that defendant "knowingly and intentionally . . . ignored and failed to give unbiased consideration to" parts of plaintiff's medical records. See Docket No. 47 at 10 (emphasis added). However, the Court finds that the other portions of the opinions challenged by defendant are adequately supported by Mr. Kezer's report, and defendant's motion will be denied to the extent it seeks to bar Mr. Kezer's opinions formed by reviewing the case handling materials.
4. Opinions on Dr. Douthit's Medical Record Review
Defendant next argues that Mr. Kezer is not qualified to criticize defense expert Dr. Douthit's medical record review. Docket No. 47 at 10. In his report, Mr. Kezer criticizes Dr. Douthit's analysis of plaintiff's claim. See, e.g., Docket No. 47-2 at 30. Defendant contends that, as an attorney and expert on insurance industry standards, Mr. Kezer is not qualified to critique Dr. Douthit's qualifications to perform a medical record review or his medical opinions. Docket No. 47 at 10-11. Plaintiff responds that, "[a]s an expert in claim handling standards, Mr. Kezer is qualified to consider Dr. Douthit's report together with the other information and opinions available to [defendant] during the evaluation of [plaintiff's] claim." Docket No. 58 at 13.
In his expert report, Mr. Kezer opines that "Dr. Douthit cherry-picked from the records" and states that Dr. Douthit's "summaries are not accurate." Docket No. 47-2 at 30. He also critiques Dr. Douthit's conclusion that plaintiff had a preexisting degenerative disc disease, stating that Dr. Douthit "ignored the very prior text of [his] report in which he stated that [plaintiff] was asymptomatic" before the accident. Id. at 33. Finally, he critiques Dr. Douthit's analysis on the basis that Dr. Douthit did not personally examine plaintiff, id. at 30, and did not "reference or mention the twenty plus other records from Dr. Katz prior to his referenced date of August 30th." Id. at 28.
The Court agrees that Mr. Kezer is not qualified to provide these opinions and that they should be excluded. While plaintiff attempts to frame Mr. Kezer's opinions as analyzing how defendant used Dr. Douthit's reports, the opinions at issue are not couched in terms of how defendant should have weighed or considered the reports of Dr. Douthit, but rather are impermissible medical opinions of Mr. Kezer regarding Dr. Douthit, about which Mr. Kezer is not qualified to testify. "In reviewing whether an expert's testimony is reliable, the trial court must assess the reasoning and methodology underlying the expert's opinion." Rodriguez-Felix, 450 F.3d at 1123 (citations and quotations omitted). Mr. Kezer did not state in his report that he has ever performed a medical examination or has reviewed medical records in the context of a physician, and it does not appear from his expert report that Mr. Kezer has any medical training. See Docket No. 47-2 at 4-6. He merely states that he has "reviewed hundreds, if not thousands, of medical records over the course of" his career. Id. at 69. Knowledge about the insurance industry's standards in handling claims does not qualify Mr. Kezer to testify whether Dr. Douthit is a qualified physician or to criticize Dr. Douthit's medical opinions. See King, 2013 WL 3943607, at *2 (finding that a doctor was not qualified to testify whether an insurance company acted as a reasonable insurer when there was no evidence that the doctor "ha[d] any experience as an insurance adjuster or in any other capacity within the insurance industry"). Mr. Kezer's opinions regarding Dr. Douthit's report will be excluded.
5. Unreliable Information
Finally, defendant challenges Mr. Kezer's report on the grounds that Mr. Kezer bases his opinions on unreliable information. Docket No. 47 at 11-12. Defendant does not set out specific opinions that it seeks to exclude, but argues that Mr. Kezer's "opinions regarding the force of the accident, including his reliance on the statements by Dr. Vilims on the forces involved in the accident[,] are inadmissible." Id. at 12. The specific statement defendant appears to challenge is Mr. Kezer's statement that the details of the accident are "well-expressed in Dr. Vilims' May 2, 2016 letter which captures the forces and impacts, i.e., the causation of [plaintiff's] injuries." Docket No. 47-2 at 37.
The Court has already ruled that Dr. Vilims is not qualified to provide expert testimony on the forces and impacts of the accident, and it follows that references to such excluded testimony will also be excluded. The Court grants defendant's motion to the extent it seeks to exclude Mr. Kezer's reference to Dr. Vilims's opinions on the forces and impacts resulting from the accident.
C. Dale C. Crawford
Plaintiff moves to exclude the testimony of Dale Crawford, who defendant disclosed as an expert in insurance industry standards to rebut the opinions of Mr. Kezer. Docket No. 52 at 2. Plaintiff does not challenge Mr. Crawford's qualifications as an expert and does not claim that Mr. Crawford's opinions would improperly instruct the jury on the law. Docket No. 64 at 1. Rather, plaintiff seeks to exclude Mr. Crawford's opinions on the grounds that they are not based on a reliable methodology and "tell the jury how to decide the case without an explanation of the criteria on which his opinions are based." Id.
While plaintiff purports to seek to exclude "most, if not all of Mr. Crawford's opinions" as unreliable and unhelpful to the jury, Docket No. 52 at 3, this request violates the Court's Practice Standards. See Practice Standards (Civil cases), Chief Judge Philip A. Brimmer, § III.G. However, plaintiff does set out certain opinions which he wishes to exclude: he seeks to exclude Mr. Crawford's conclusion that defendant "conducted a reasonable evaluation based on appropriate claims handling standards" on the basis that it is not based upon a reliable methodology, id. at 3, and also identifies six opinions that he seeks to exclude on the basis that they are not helpful to the jury because they are "conclusory, unsupported, and tell the jury how to decide the case." Id. at 3-4.
Plaintiff generally argues that Mr. Crawford's opinions must be excluded because Mr. Crawford fails to "identify or explain the applicable [insurance industry] standards or how he analyzed the facts of the case in light of those standards." Id. at 6. For example, plaintiff states that Mr. Crawford did not "cite to any insurance industry standards, regulations, or case law to support his opinions." Id. at 7. In making this argument, plaintiff ignores page 18 of Mr. Crawford's report, wherein Mr. Crawford lists six of what he calls "[s]ome of the important industry standards." Docket No. 52-2 at 18. Plaintiff also complains that Mr. Crawford "did not provide any background regarding insurance industry standards" or explain "from where they are derived." Docket No. 52 at 8, 10. However, given that plaintiff does not dispute the accuracy or applicability of the insurance industry standards that Mr. Crawford identifies, there is no reason for Mr. Crawford to discuss the origin of such standards. In addition, plaintiff points out that Mr. Crawford does not cite any regulations or case law to support his opinions. Id. at 7, 10. Mr. Crawford is not an attorney and states that his opinions are based on his experience and training while working in the insurance industry. Docket No. 52-2 at 1. Once again, plaintiff does not challenge the accuracy of standards that Mr. Crawford identified. As a result, the fact that Mr. Crawford does not cross-reference the industry standards that he identifies with supportive regulations or case law does not undermine the reliability of such standards. Mr. Crawford's failure to cite law to support the standards he identifies does not require exclusion of his opinions.
Plaintiff cites TBL Collectibles, Inc. v. Owners Ins. Co, 285 F. Supp. 3d 1170 (D. Colo. 2018), in which the Court excluded an expert opinion because the expert's report "contain[ed] no reference to legal authorities supporting [the expert's] conclusion." Id. at 1185. However, in that case, the expert's opinion that "businesses are legally obligated to maintain records of purchased items" by its nature involved a legal obligation, which the expert failed to identify and which the plaintiff disputed. Id. Here, Mr. Crawford bases his opinions on industry standards, which do not necessarily have to be supported by regulation or statute and which, in any event, are not disputed. --------
Plaintiff generally argues that Mr. Crawford's opinions "lack the requisite methodology set forth under Rule 702" and amount to "nothing more than" the ipse dixit of the expert. Docket No. 64 at 1, 2. An insurance industry expert's methodology will be "sufficiently reliable" when the expert "explain[s] what he [knew] of insurance industry standards and practices based on his experience, explain[s] the facts and evidence he reviewed in [the] case, [and] then opin[es] on the ways he believe[s] [the defendant's] handling of Plaintiff's claim fell short [of] the relevant industry standards . . . or differed from handling of similar claims in his experience." O'Sullivan, 233 F. Supp. 3d at 925. The Court finds that Mr. Crawford's methodology is sufficiently reliable and does not warrant the exclusion of his six opinions. See id. Mr. Crawford explains his insurance industry experience, Docket No. 52-2 at 2-3, identifies "important industry standards", id. at 18, reviews defendant's investigation of plaintiff's claim in detail, id. at 5-9, and concludes that, in his experience, defendant's handling of plaintiff's claim was appropriate and reasonable. Id. at 9.
The six opinions of Mr. Crawford that plaintiff moves to exclude are: (1) defendant's conclusion that plaintiff had been adequately compensated for his accident-related injuries was reasonable and based on appropriate claims handling standards; (2) the claims log and "the deposition testimony of the individuals involved" show that plaintiff's claim was considered fairly; (3) defendant conducted a reasonable and unbiased investigation of plaintiff's claim; (4) defendant's investigation was within the industry's custom and practice for the treatment of a claim of this type; (5) defendant followed its own guidelines and industry standards in the investigation and assessment of plaintiff's claim; and (6) defendant conducted an appropriate investigation and acted in good faith in handling plaintiff's claim. Docket No. 52 at 4.
Plaintiff argues that the six opinions "are simply directions to the jury on how to decide the issues that do not even refer to, let alone explain, industry standards." Id. at 11. He argues that Mr. Crawford should not be permitted to opine that defendant complied with claims handling standards "without explaining which conduct complied with which insurance industry standards, including, but not limited to the Unfair Claim[s] [Settlement] Practices Act and why." Id.
As noted above, Mr. Crawford is not required to couch his discussion of industry standards in reference to laws or regulations. He is permitted to "articulate what he believes were the relevant industry standards applicable to handling [plaintiff's] claim" and may opine whether he believes defendant departed from those standards. O'Sullivan, 233 F. Supp. 3d at 929.
The Court agrees with defendant that Mr. Crawford adequately supported the six challenged opinions with references to industry standards. For example, when opining that defendant "followed its own guidelines as well as industry standards in the investigation and assessment of [plaintiff's] claim," Docket No. 52-2 at 17, Mr. Crawford went through a number of defendant's own guidelines and expressly stated how defendant complied. Id. Further, Mr. Crawford's remaining opinions about defendant's compliance with industry standards will not be excluded. As set out above, Mr. Crawford sufficiently set forth the basis for these opinions by setting out the applicable industry standards and explaining how defendant's conduct comported with those industry standards. See, e.g., Docket No. 52-2 at 9, 18-19. Thus, these opinions will not be excluded.
Mr. Crawford's report, however, contains general references to industry standards that do not articulate the actual standard at issue. In testifying at trial, Mr. Crawford may only rely upon the internal guidelines and industry standards referenced on pages 17 and 18 of his report given that these are the only ones that he has specifically identified.
IV. CONCLUSION
Wherefore, it is
ORDERED that Defendant's Motion to Exclude the Testimony of John Kezer Pursuant to FRE 702 [Docket No. 47] is GRANTED IN PART and DENIED IN PART. It is further
ORDERED that Defendant's Motion to Exclude Certain Testimony of Plaintiff's Medical Experts Pursuant to FRE 702 [Docket No. 48] is GRANTED IN PART and DENIED IN PART. It is further
ORDERED that Plaintiff's Motion to Exclude Testimony of Dale C. Crawford Pursuant to Fed. R. Evid. 702 [Docket No. 52] is GRANTED IN PART and DENIED IN PART. DATED January 2, 2020.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
Chief United States District Judge