United States District Court, D. Colorado
SUNFLOWER CONDOMINIUM ASSOCIATION, INC., a Colorado nonprofit corporation, Plaintiff,
v.
OWNERS INSURANCE COMPANY, Defendant.
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION TO STRIKE
William J. Martínez United States District Judge.
Plaintiff
Sunflower Condominium Association, Inc.
(“Plaintiff”) brings this action against
Defendant Auto-Owners Insurance Company, Inc.
(“Defendant”), alleging breach of contract,
statutory bad faith under C.R.S. §§
10-3-1115&-1116, and common law insurance bad faith. (ECF
No. 62 at 4, 5, 6.) This matter is before the Court on
Defendant's Motion to Strike Plaintiff's Experts
under Rule 37(c) and to Exclude Duplicative and Cumulative
Expert Testimony (“Motion to Strike”). (ECF No.
67.) For the reasons set forth below, Defendant's Motion
to Strike is granted in part and denied in part.
I.
DISCUSSION
Defendant
raises four issues with respect to Plaintiff's expert
testimony in its Motion to Strike. Defendant argues that: (1)
Plaintiff's expert, Jason Domecq (“Domecq”),
a roofing contractor with R3NG, LLC, failed to disclose
information required to be disclosed under Rule 26(a)(2) (ECF
No. 67 at 5); (2) Plaintiff's expert, Edward Fronapfel
(“Fronapfel”), an engineer with Solutions Before
Solutions After, Inc. (“SBSA”), also failed to
disclose information required by Rule 26(a)(2)
(id.); (3) Fronapfel's testimony is
unnecessarily cumulative of testimony by other experts (ECF
No. 67 at 11.); and (4) Plaintiff's non-retained expert,
David Ford (“Ford”), “is highly duplicative
of the planned testimony of Plaintiff's other
experts” (id.). The Court will consider each
of Defendant's arguments in turn.
A.
Domecq's Expert Disclosure
Defendant's
first two arguments concern Federal Rule of Civil Procedure
26(a)(2)(B), which provides that “[u]nless otherwise
stipulated or ordered by the court, [an expert] disclosure
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. The report must contain (i) a complete
statement of all opinions the witness will express and the
basis and reasons for them; (ii) the facts or data considered
by the witness in forming them; (iii) any exhibits that will
be used to summarize or support them; (iv) the witness's
qualifications, including a list of all publications authored
in the previous ten years; (v) a list of all other cases in
which, during the previous 4 years, the witness testified as
an expert at trial or by deposition; and (vi) a statement of
the compensation to be paid for the study and testimony in
the case.” Id.
Under
Rule 37(c)(1), “If a party fails to provide information
or identify a witness as required by Rule 26(a) or (e), the
party is not allowed to use that information or witness to
supply evidence on a motion, at a hearing, or at a trial,
unless the failure was substantially justified or is
harmless.”
Defendant's
first contention is that the Court should strike Domecq as an
expert in the litigation because Plaintiff “did not
provide a written report, prepared and signed by Domecq, that
contained all necessary information.” (ECF No. 67 at
7.) Domecq was tasked with preparing a cost of repair
estimate based on the scope of work identified by SBSA. (ECF
No. 68 at 2.) Defendant argues that Domecq “did not
sign the estimate and there is no indication that he even
prepared it;” rather the document appears to have been
prepared by Thalassa Fuhrmann
(“Fuhrmann”).[1] (ECF No. 67 at 7.) Defendant claims
that Domecq's written report is also deficient in that it
does not contain: “(i) a complete statement of the
opinions Domecq will express, and the basis for those
opinions; (ii) the facts or data Domecq considered in
reaching his opinions; (iii) any exhibits that Domecq will
use to summarize or support his opinions; and (iv) the
principles and methods on which Domecq relied in support of
his opinions, and a description of how Domecq applied those
principles and methods reliably to the facts of the
case.” (Id. at 8 (internal quotation marks
omitted).)
In its
Response Opposing Defendant's Motion to Strike (ECF No.
68 (“Response”)), Plaintiff argues that Domecq
“should not be excluded because omission was
substantially justified, and Defendant was not surprised nor
prejudiced.” (ECF No. 68 at 2.) Plaintiff contends that
Domecq “did not set out all required categories of
information in a ‘narrative-style' written report
because the Xactimate estimate he produced sets forth most,
if not all, requirements for disclosure.”
(Id.) According to Plaintiff, “Domecq's
Xactimate estimate itself is a report of the facts or data
considered in reaching the cost of repair, the complete
statement of the expert's opinion, and the basis for
those opinions. Domecq's Supplemental Report [ECF No.
68-1 (“Supplemental Report)] simply conveys his
estimate in a narrative form and explains what Xactimate
does, which is publicly available on the website.”
(Id. at 3 (citations omitted).)[2] In his
Supplemental Report, Domecq “explains that he engaged
Fuhrmann to input his scope of work into the Xactimate
software. Then, Domecq reviewed all data entered into the
Xactimate software and in the final Xactimate estimate and
adopted in its entirety as his own opinion.”
(Id.)
The
Court denies Defendant's request to exclude Domecq, but
the scope of Domecq's testimony will be limited. Domecq
was given SBSA data-that Defendants also had access to-which
he then presented to Fuhrmann to enter into the Xactimate
software. Domecq adopted the numbers produced by the software
as his opinion. The Court understands Domecq's testimony
to amount only to the process of obtaining Xactimate
estimates and the estimates themselves. Based on that
understanding, the Court finds that the more formal errors in
Domecq's expert report are harmless because Defendant
also has the SBSA data. Accordingly, Defendant's Motion
to Strike is denied to the extent that it seeks to exclude
Domecq's testimony. If Domecq's testimony turns out
to be more extensive than the Court's understanding of
it, Defendant may re-raise its objection at the appropriate
time.
B.
Fronapfel's Expert Disclosure
Defendant's
second contention is that “the Court should exclude
Fronapfel as an expert witness at trial because the written
report accompanying the disclosures was not prepared by
Fronapfel.” (ECF No. 67 at 9.) According to Defendant,
it appears that Craig Dixon (“Dixon”), another
SBSA engineer, prepared the report and Fronapfel merely
reviewed it. (Id.)
In its
Response, Plaintiff argues that “Dixon and other SBSA
staff carried out visual observation of the Sunflower
property. Following the observation, Fronapfel reviewed the
observations with Dixon and assigned Dixon, under his
responsible charge of engineering, to prepare the base report
of findings and opinions. Fronapfel reviewed and edited the
base report, and based on his education, training,
experience, and knowledge, Fronapfel edited, reviewed, and
ultimately concurred with the findings provided in the final
report.” (ECF No. 68 at 8 (citations and emphasis
omitted).)
Because
Plaintiffs appear to be claiming that Fronapfel and Dixon
co-authored their report, the Court concludes that Plaintiff
may only call one expert, either Fronapfel or Dixon, but not
both, to testify as a witness. Thus, Plaintiff is required to
choose one author of the SBSA report to testify regarding the
SBSA report. Accordingly, Defendant's Motion to Strike is
granted to the extent that it claims Plaintiff cannot have
two witnesses testify to ...