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Kouzmanoff v. Unum Life Insurance Company of America

United States District Court, D. Colorado

October 25, 2018

MARC KOUZMANOFF, Plaintiff,
v.
UNUM LIFE INSURANCE COMPANY OF AMERICA, Defendant, and MARC KOUZMANOFF, Plaintiff,
v.
THOMSON REUTERS HOLDINGS, INC., Defendant,

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Scott T. Varholak United States Magistrate Judge.

         This matter is before the Court on Defendant Thomson Reuters' Motion to Exclude the Testimony of Helen Woodard Pursuant to Fed.R.Civ.P. 26 (the “Motion”) [#91], which was referred to this Court [#92]. The Court has considered the Motion and related briefing, arguments made at the August 29, 2018 Motion Hearing, the case file, and the applicable case law. For the following reasons, the Court respectfully RECOMMENDS that the Motion be GRANTED and that the Court EXCLUDE the testimony of Plaintiff's proposed expert witness, Helen Woodard.[1]

         I. BACKGROUND[2]

         This case arises out of a dispute over short-term disability benefits between Plaintiff Marc Kouzmanoff and his employer, Defendant Thomson Reuters Holdings, Inc. (“Thomson Reuters”), and the administrator of Thomson Reuters' short-term disability plan, Defendant UNUM Life Insurance Company of America (“UNUM”). [#55 at ¶¶ 2, 4, 22, 46] Plaintiff worked for Thomson Reuters for 30 years, selling legal research services to attorneys. [Id. at ¶ 22] Plaintiff's work “involved personal sales presentations to law firms in a highly-competitive market, working on a commission basis to meet his sales quota.” [Id. at ¶ 23] Plaintiff's position also “involved driving.” [Id. at ¶ 24]

         In 2011, Plaintiff began having difficulty controlling his Type I Diabetes, “with frequent hypoglycemia and wide fluctuations in blood glucose readings.” [Id. at ¶¶ 25-26] As a result, Plaintiff's physician requested that he reduce his hours and the number of sales presentations he made. [Id. at ¶ 28] On March 31, 2016, on doctor's orders, Plaintiff ceased performing certain material and substantial duties of his employment and informed Thomson Reuters that performing those duties “involved a high risk of injury or mortality, due to the inability to control his blood sugars while performing his required tasks at the required, usual and customary level.” [Id. at ¶¶ 31-32] Plaintiff then made a claim for short-term disability benefits, effective March 31, 2016. [Id. at ¶ 33] Plaintiff was placed on unpaid Family Medical Leave Act leave from April 1, 2016 through July 1, 2016. [Id. at ¶ 35] From July 1, 2016 through October 6, 2016, Thomson Reuters provided Plaintiff with modified employment that essentially complied with work restrictions suggested by Plaintiff's doctor. [Id. at ¶ 39] On October 6, 2016, Thomson Reuters terminated Plaintiff's employment, because it “did not have a sales position for an employee who could not perform sales.” [Id. at ¶¶ 41-42]

         Defendants denied Plaintiff's claim for short-term disability benefits on the basis that (1) he did not meet the definition of disability under the plan; and (2) Plaintiff's disability was “caused by, contributed to by, or resulting from an occupational sickness.” [Id. at ¶¶ 45-46] On March 21, 2017, Plaintiff filed a lawsuit against UNUM in the United States District Court for the District of Colorado (the “District of Colorado”) and a separate lawsuit against Thomson Reuters in Boulder County District Court. [#23 at 2] On April 20, 2017, Thomson Reuters removed the state court case to the District of Colorado. [Id.] On June 28, 2017, the Court consolidated the two lawsuits for all purposes. [Id. at 7] On January 3, 2018, Plaintiff filed his Amended Complaint against Thomson Reuters, asserting claims for breach of contract, violation of the Colorado Wage Act, Colo. Rev. Stat. § 8-4-101, et seq., and civil conspiracy. [#55]

         The Scheduling Order issued by this Court applicable to the consolidated cases set February 26, 2018 as the deadline for the disclosure of affirmative experts and March 26, 2018 as the deadline for the disclosure of rebuttal experts. [#27 at 11] On February 26, 2018, Plaintiff served Thomson Reuters with his Expert Disclosures, which disclosed Helen Woodard, M.A., as an expert witness pursuant to Federal Rule of Civil Procedure 26(a)(2)(B). [#91-1 at 11] Plaintiff provided Thomson Reuters a copy of Ms. Woodard's report, which is dated July 19, 2017, with the disclosures.[3] [Id.; see also #91-2] According to her report, Ms. Woodard, who is a Rehabilitation Counselor, was asked to provide “an opinion regarding [Plaintiff's] ability to return to his usual work.” [#91-2 at 1] Ms. Woodard's report consists of (1) a summary of Plaintiff's work history; (2) a summary of Plaintiff's medical records; (3) a summary of Plaintiff's employment records and earnings history; (4) a summary of Thomson Reuters' disability policy and the records specific to Plaintiff's claim for disability; (5) a summary of Ms. Woodard's “Labor Market Research;” (6) a summary of Ms. Woodard's interview with Plaintiff's wife; (7) a summary of Ms. Woodard's discussion with Plaintiff about his current status; and (8) a discussion of Ms. Woodard's opinions in this case, consisting of six paragraphs and approximately one single-spaced page of text. [#91-2] Ms. Woodard opined that (1) Plaintiff would “likely not be able to successfully return to the job of being a salesman such as he has done in the past, given how the work is typically performed” and (2) “less demanding sales jobs pay 30% to 50% less than what [Plaintiff] was making at Thom[son] Reuters.” [Id. at 34-35].

         On April 2, 2018, counsel for Thomson Reuters sent counsel for Plaintiff a request for “the facts or data relied upon [by Ms. Woodard] with respect to her labor market research.” [#91-4] On June 18, 2018, Plaintiff responded by providing a supplemental disclosure consisting of a document from the United States Bureau of Labor Statistics website describing various facts about retail sales workers and customer service representatives (the “Bureau of Labor Statistics Web Pages”). [#91 at 3; #91-3] Plaintiff acknowledges that Ms. Woodard “did not keep a copy of what she originally looked at” when drafting the “Labor Market Research” section of her report and that the Bureau of Labor Statistics Web Pages provided had been updated since Ms. Woodard drafted her report. [#94 at 3].

         On July 18, 2018, Thomson Reuters filed the instant Motion seeking to exclude the testimony of Ms. Woodard based upon Plaintiff's failure to disclose her “labor market research.” [#91] Plaintiff responded on July 30, 2018, arguing that Ms. Woodard's report is largely based upon her experience and Thomson Reuters' own description of Plaintiff's sales position. [#94] On August 13, 2018, Defendant filed its reply in support of the Motion [#95] and, on August 29, 2018, this Court heard oral argument on the Motion [#98].

         II. LEGAL STANDARD

         Federal Rule of Civil Procedure 26(a)(2) provides, in relevant part:

(A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.
(B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this 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 ...

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