Docket No. 28-3, at 10:15-11:3. See Healy-Petrik v. State Farm Fire & Cas. Co., No. 2:20-cv-00611-TC-JCB, 2022 WL 464220, at *7 (D. Utah Feb. 15, 2022) (noting “public policy reasons to exclude experts with such direct financial stakes” but allowing testimony from a public adjustor). Defendant also suggests that Plaintiffs' other non-retained expert, Sonja Beekley, should be excluded based on her testimony that she is paid 30% of net profits if she secures a roof replacement job for her employer.
See Braun v. Medtronic Sofamor Danek, Inc., 141 F.Supp.3d 1177, 1187 (D. Utah Oct. 21, 2015), aff'd, 719 Fed. App'x 782 (10th Cir. 2017). Healy-Petrik v. State Farm Fire & Cas. Co., No. 2:20-CV-00611-TC-JCB, 2022 WL 464220, at *6 (D. Utah Feb. 15, 2022). Braun v. Medtronic Sofamor Danek, Inc., 141 F.Supp.3d at 1188.
In addition to the case law presented by Angus, the court is also persuaded by the reasoning of Judge Campbell's recent decision in Healy-Petrik v. State Farm Fire & Cas. Co., No. 2:20-CV-00611-TC-JCB, 2022 WL 464220, at *7 (D. Utah Feb. 15, 2022). Interestingly, it involved the same Defendant, State Farm, and one of the two expert witnesses at issue here, Jenson.
, the party waives the issue.” Andersen v. Foremost Ins. Co., 2022 WL 808051, at *3 (D. Utah Mar. 17, 2022) (citing Woodworker's Supply, 170 F.3d at 993 and Healy-Petrik v. State Farm Fire & Cas. Co., 2022 WL 464220, at *8 (D. Utah Feb. 15, 2022)); see also Contour PAK, Inc. v. Expedice, Inc., No. 08-cv-01091-PAB-KMT, 2009 WL 2490138, at *1 (D. Colo. Aug. 14, 2009) (citing Rule 37(c)(1) and noting that the burden of establishing substantial justification and harmlessness is upon the party who is claimed to have failed to make the required disclosures).
In determining the pending Motion this Court looks to the well-reasoned opinion of Judge Tena Campbell in Healy-Petrik v. State Farm Fire & Cas. Co., No. 2:20-cv-00611-TC-JCB, 2022 U.S. Dist. LEXIS 27980, at *1 (D. Utah Feb. 15, 2022). In that case, Judge Campbell addressed a nearly identical motion to exclude the expert testimony of Matthew Jensen based, in part, on a failure to comply with expert report requirements.