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Meek v. Allstate Fire and Casualty Insurance Co.

United States District Court, D. Colorado

August 7, 2018



          Nina Y. Wang, Magistrate Judge

         This 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 is DENIED.


         Plaintiff 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].

         After 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].

         On 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, 2018, [#49].

         On May 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 Conference.

         On July 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.


         On July 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. [Id.].

         Opinion 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).

         Plaintiff 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.

         I. ...

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