United States District Court, D. Colorado
Y. Wang, Magistrate Judge
matter comes before the court on Plaintiff Christopher
Meek's (“Plaintiff” or “Mr.
Meek”) First Motion in Limine (“Motion” or
“Motion to Exclude”). [#46, filed May 18, 2018].
This action and the Motion are before the court pursuant to
the Order of Reference dated April 19, 2017 [#17], 28 U.S.C.
§ 636(c), Fed.R.Civ.P. 73, and D.C.COLO.LCivR 72.2. The
court has carefully considered the Motion and Response
thereto, the entire case file, and the applicable case law.
For the following reasons, Plaintiff's Motion to Exclude
was in a motor vehicle accident with an underinsured driver
on July 9, 2015. He claims to have sustained injuries to his
neck and hip in the collision, and he underwent surgery to
repair a labral tear in his right hip. At the time of the
accident, Plaintiff was insured by Defendant Allstate Fire
and Casualty Insurance Company (“Defendant” or
“Allstate”) under a policy providing for
Underinsured Motorist (“UIM”) coverage up to
$100, 000. Plaintiff submitted a UIM claim for policy limits
and, on September 2016, Allstate extended an offer of
Plaintiff thereafter initiated this action on February 3,
2017, by filing a Complaint in the District Court for Denver
County, Colorado asserting four claims for Breach of
Contract, “Violation of C.R.S. § 10-3-1115/First
Party Statutory Claim pursuant to C.R.S. § 10-3-1116,
” Breach of Duty of Good Faith and Fair Dealing, and
“Claim for Underinsured Motorist Benefits.” [#3].
Allstate timely removed the action to this court asserting
jurisdiction pursuant to 28 U.S.C. § 1332, see
[#1], and filed an Answer, [#12].
the close of discovery, Allstate filed a Motion for Summary
Judgment as to Plaintiff's first three claims, but not as
to the fourth claim. See [#26]. Allstate argued that
the record demonstrates that the Parties merely disagreed on
the amount of benefits owed, that there is no evidence to
show that Allstate unreasonably delayed or denied payment of
insurance benefits to Plaintiff, or that Allstate failed to
perform under the contract or acted unreasonably or in
violation of industry standards, and that, under Colorado
law, an insurer may challenge claims that are “fairly
debatable.” [#26 at 2, 8]. Mr. Meek argued in response
that Allstate improperly delayed payment of his claim by
repeatedly requesting physical therapy records, which his
attorneys had already provided, and wage loss documentation,
which he states was irrelevant to his claim, that
Allstate's conduct violated multiple provisions of the
Unfair Claim Settlement Practices Act, and that Allstate is
liable for bad faith by “continuing to force its
insured to expend resources litigating issues raised by its
Motion that Colorado Courts have consistently
rejected.” [#27 at 2-3, 10].
April 3, 2018, the court held a Final Pretrial Conference,
[#37], and entered a Final Pretrial Order, setting a Trial
Preparation Conference for August 17, 2018 and a five-day
trial to commence August 20, 2018. [#38]. The Final Pretrial
Order set a deadline of May 18, 2018 for the Parties to file
any motions pursuant to Rule 702 of the Federal Rules of
Evidence. [Id. at 13]. The court thereafter issued a
Trial Preparation Order. See [#41]. On May 18, 2018,
Plaintiff filed the instant motion. Although styled as a
Motion in Limine, the Motion seeks to exclude testimony
relating to an independent medical examination provided by
Defendant's specially-retained expert, Gwendolyn Henke,
M.D., and is more appropriately characterized as a motion to
exclude under Rule 702. See [#46]. Accordingly, this
court will construe the Motion and refer to it as a Motion to
Exclude Dr. Henke. Defendant filed its Response on June 8,
21, 2018, the court denied the Motion for Summary Judgment,
finding that the Parties disputed the following material
facts: whether Allstate would have assessed Plaintiff's
claim differently absent the misunderstanding related to the
physical therapy records and lost wage documentation; whether
Allstate received certain correspondence from Plaintiff
during the course of the claim process; and whether Allstate
supplied and Plaintiff failed to execute a release for his
medical records. See [#47]. With respect to the
fourth claim, the court observed that the claim appears to be
duplicative of the first claim for breach of contract, and
questioned whether Plaintiff could obtain any relief through
his fourth claim that he could not obtain through his first
claim. See Id. The court instructed the Parties to
be prepared to address the viability of the fourth claim in a
motion in limine or at the Final Trial Preparation
12, 2018, Plaintiff filed a second Motion in Limine,
identifying eight topics of evidence he wishes to preclude.
See [#50]. On July 26, 2018, Defendant filed a
Response opposing five of the topics and partially opposing a
sixth topic. See [#52]. With this Order, the court
addresses only the Motion to Exclude.
24, 2017, Dr. Henke performed an independent medical
examination (“IME”) of Plaintiff, which included
her review of his medical records following his involvement
in the July 9, 2015 automobile accident. See
[#46-1]. Dr. Henke opined in relevant part that Plaintiff
sustained the following injuries as a result of the motor
vehicle accident: acute cervical strain; acute shoulder
girdle strain; and multiple contusions. [Id. at 5].
She further opined that as of the date of the IME Plaintiff
had fully recovered without permanent impairment or need for
further treatment, and that the pain associated with his
right hip is the result of a pre-existing condition and not
injuries sustained during the motor vehicle accident.
testimony based on scientific, technical, or other
specialized knowledge must be offered by an expert witness
pursuant to Rule 702. Fed.R.Evid. 702; Kumho Tire Co.,
Ltd. v. Carmichael, 526 U.S. 137, 147 (1999). Rule 702
states 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:
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; the testimony is
based on sufficient facts or data; the testimony is the
product of reliable principles and methods; and the expert
has reliably applied the principles and methods to the facts
of the case.
Fed. R. Evid. 702. A court's analysis pursuant to Rule
702 must also consider relevance; expert testimony is
admissible where it has a valid bearing on the facts of the
case, is sufficiently tied to the facts of the case, and will
assist the jury in resolving a factual dispute. Daubert
v. Merrell Dow Pharmaceutical Co., 509 U.S.
539, 591 (1993). Put another way, the court first decides
whether the proffered testimony is reliable, and then whether
“it is relevant to the task at hand.” Bitler
v. A.O. Smith Corp., 400 F.3d 1227, 1233-34 (10th
Cir.2004) (citing Daubert, 509 U.S. at 597). The
proponent of expert evidence bears the burden of establishing
its admissibility. Ralston v. Smith & Nephew
Richards, Inc., 275 F.3d 965, 970 n.4 (10th Cir. 2001).
And it is well established that a district court has broad
discretion in assessing an expert's reliability and
relevance. Dodge v. Cotter Corp., 328 F.3d 1212,
1223 (10th Cir. 2003).
appears to concede that Dr. Henke is qualified as an expert.
Plaintiff questions instead the reliability of Dr.
Henke's opinion that his right hip injury is caused by a
pre-existing condition, and asserts that such opinion
“is unsubstantiated by any records or evidence and
should be excluded pursuant to Rule 702 as it is not
reliable.” [#46 at 8]. Most of Mr. Meek's arguments
focus on the second prong of the Daubert analysis,
i.e., Dr. Henke's testimony is not relevant because the
IME was administered after Defendant had denied the claim,
and the court should preclude Dr. Henke from testifying as to
injuries for which Plaintiff does not seek damages.
See [#46 at 5-7]. Although not argued in this order
by the Parties, the court first considers reliability, and
then turns to relevance.