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Bagher v. Auto-Owners Insurance Co.

United States District Court, D. Colorado

March 25, 2014

HOSSEIN BAGHER, d/b/a CHERRY CREEK ORIENTAL RUGS, Plaintiff,
v.
AUTO-OWNERS INSURANCE COMPANY, Defendant.

ORDER RE: MOTIONS TO EXCLUDE EXPERT TESTIMONY

ROBERT E. BLACKBURN, District Judge.

This matter is before me on the following: (1) Motion To Exclude Testimony of Brendan Clark, M.D. Pursuant to F.R.E. 702 [#72][1]; (2) Motion To Exclude Testimony of Rod Schafer Pursuant to F.R.E. 702 [#73]; Motion To Exclude Testimony of Wendy Madigosky, M.D. Pursuant to F.R.E. 702 [#74]; and (4) Plaintiff's Motion To Strike Opinions of Clifford Cooper [#75], all filed March 4, 2014. The parties filed responses [#81, #82, #83, #84] and replies [#89, #90, #91, #92]. I grant the motion concerning Clifford Cooper in part and deny it in part. I deny the other motions.

I. STANDARD OF REVIEW

In their motions, the parties seek to exclude the testimony of expert witnesses endorsed by the opposing party. Rule 702 of the Federal Rules of Evidence, which governs the admissibility of expert witness testimony, provides:

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 interpreted by the Supreme Court, Rule 702 requires that an expert's testimony be both reliable and relevant. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589-92 (1993); Truck Insurance Exchange v. MagneTek, Inc., 360 F.3d 1206, 1210 (10th Cir. 2004). The Supreme Court has described the court's role in weighing expert opinions against these standards as that of a "gatekeeper." See Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 147 (1999). Generally, "rejection of expert testimony is the exception rather than the rule." United States v. Nacchio, 519 F.3d 1140, 1154 (10th Cir. 2008), vacated in part on rehearing en banc, 555 F.3d 1234 (10th Cir. 2009); FED.R.EVID. 702, 2000 Advisory Comm.'s Notes.

II. BACKGROUND

This case arises from two separate insurance claims made by the plaintiff, Hossein Bagher, in 2009 and 2011. Both claims concerned alleged water damage at the business owned and operated by Mr. Bagher, Cherry Creek Oriental Rugs (CCOR), a retail rug store. According to Mr. Bagher, as a result of the 2009 water leak, a number of rugs in the store were either damaged or destroyed. In addition, Mr. Bagher claims that, as a result of the 2011 incident, a number of additional rugs were damaged or destroyed. He claims further claims there was damage to the building itself. At the time of these alleged water intrusions, Mr. Bagher and his business were insured under policies issued by the defendant, Auto-Owners Insurance Company.

Auto-Owners provided some coverage for the losses, but has denied additional coverage. The plaintiff, Hossein Bagher, claims he is entitled to additional coverage for the 2009 and 2011 losses. In his complaint [#11-1]Mr. Bagher asserts three claims: (1) breach of express contract; (2) bad faith breach of insurance contract; and (3) a statutory claim for unreasonable delay or denial of insurance payments under ยงยง10-3-1115 and 10-3-1116, C.R.S.

In September 2013, Mr. Bagher was permitted to endorse three additional expert witnesses related to a new theory of damages. Mr. Bagher now contends that the alleged growth of mold in the CCOR building is attributable to the claims handling of Auto Owners. He claims further that, as a result of the mold, he has suffered bodily injury, including permanent lung scarring.

III. SUMMARY OF PROPOSED OPINION TESTIMONY

A. Brendan Clark, M.D. - Dr. Clark has been endorsed by Mr. Bagher as a non-specially retained expert witness - a treating physician. In his supplemental expert disclosure, Mr. Bagher provided the following summary of Dr. Clark's proffered opinions:

If called, Dr. Clark is expected to testify consistent with his treatment notes, Plaintiff's other medical records disclosed in this case, as well as his deposition, if taken. Specifically, Dr. Clark may testify concerning the onset, exacerbation, and treatment of Plaintiff's various pulmonary and other medical issues following the 2011 water loss, including but not limited to shortness of breath, wheezing, and the development of asthma. Dr. Clark may testify that these symptoms and disorders primarily developed following the 2011 water loss and are consistent with Plaintiff's exposure to mold in his retail rug store following the loss. Dr. Clark is expected to testify that Plaintiff has developed permanent lung scarring as result of his exposure to that mold, as is supported by CT scans conducted shortly before the loss and again in the years following the loss, the former of which shows no lung scarring and the latter of which does. Dr. Clark may testify regarding the various treatments recommended or prescribed to Plaintiff, as well as the various tests and investigations conducted by himself and other treatment providers at the University of Colorado Hospital and elsewhere. Dr. Clark may also testify concerning Plaintiff's prognosis for the future, and any recommendations he may have in this regard. Dr. Clark may testify regarding the types of mold that can cause pulmonary or other medical issues within the body, and the types of illnesses or medical issues that can be caused by such mold. Dr. Clark may also summarize the medical treatment Plaintiff has received from other providers, specifically those affiliated with the University of Colorado Hospital. Because Plaintiff is still treating with Dr. Clark, his opinions may be supplemented following additional treatments or investigations occurring after the date of this disclosure. Dr. Clark's opinions in this matter will be made to a reasonable degree of medical probability.

Motion [#72], Exhibit 2, pp. 3-4.

B. Wendy Madigosky, M.D. - Dr. Madigosky has been endorsed by Mr. Bagher as a non-specially retained expert witness - a treating physician. In his supplemental expert disclosure, Mr. Bagher provided the following summary of Dr. Madigosky's proffered opinions:

If called, Dr. Madigosky is expected to testify consistent with her treatment notes, Plaintiff's other medical records disclosed in this case, as well as her deposition, if taken. Specifically, Dr. Madigosky may testify concerning the onset, exacerbation, and treatment of Plaintiff's various pulmonary and other medical issues following the 2011 water loss, including but not limited to shortness of breath, wheezing, and the development of asthma. Dr. Madigosky may testify that these symptoms and disorders primarily developed following the 2011 water loss and are consistent with Plaintiff's exposure to mold in his retail rug store following the loss. Dr. Madigosky is expected to testify that Plaintiff has developed permanent lung scarring as result of his exposure to that mold, as is supported by CT scans conducted shortly before the loss and again in the years following the loss, the former of which shows no lung scarring and the latter of which does. Dr. Madigosky may testify regarding the various treatments recommended or prescribed to Plaintiff, as well as the various tests and investigations conducted by herself and other treatment providers at the University of Colorado Hospital and elsewhere. Dr. Madigosky may also testify concerning Plaintiff's prognosis for the future, and any recommendations she may have in this regard. Dr. Madigosky may also summarize the medical treatment Plaintiff has received from herself and other providers, specifically those affiliated with the University of Colorado Hospital. Because Plaintiff is still treating with Dr. Madigosky, her opinions may be supplemented following additional treatments or investigations occurring after the date of this disclosure. Dr. Madigosky's opinions in this matter will be made to a reasonable degree of medical probability.

Motion [#74], Exhibit 2, pp. 4-5.

C. Rod Schafer - Mr. Bagher endorsed Mr. Schafer as a specially retained expert who was hired to conduct an investigation of CCOR to evaluate the presence of mold. Based on his findings, Mr. Schafer also prepared a remediation plan, which is part of his report. Motion [#73], Exhibit 3. Mr. Schafer recommended that a mold ...


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