United States District Court, D. Colorado
KRISTEN L. MIX, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendant's Motion
to Strike Plaintiff's Rebuttal Expert Dr. Richard
Perillo [sic] [#42] (the “Motion”).
Plaintiff filed a Response [#46] in opposition to the Motion,
Defendant filed a Reply [#51]. The Court has reviewed the
Motion, Response, Reply, the exhibits, the entire case file,
and the applicable law, and is fully advised on the
premises. For the reasons set forth below, the
Motion [#42] is GRANTED.
a bad faith and breach of contract case arising out of
Plaintiff's claim for uninsured/underinsured
(“UIM/UM”) insurance benefits under her
automobile policy with Defendant. Compl. [#4]
¶¶ 6-18, 74-88. Plaintiff was involved in motor
vehicle accidents in which she was not at fault on March 5,
2014, and on April 12, 2015. Id. ¶¶ 5, 12.
Plaintiff settled with the at-fault, underinsured driver in
the first accident for $100, 000, but this sum did not make
Plaintiff whole. Id. ¶¶ 8-11. The at-fault
driver in the April 12, 2015 accident was uninsured.
Id. ¶ 15.
12, 2016, Plaintiff submitted a formal underinsured motorist
claim with Defendant for her injuries, damages, and losses
arising from the collisions. Id. ¶ 18. Between
May of 2016 and October of 2017, Plaintiff corresponded with
Defendant about her claims and the documents, records, and
payments involved. Id. ¶¶ 18-57. While
Plaintiff received some payments from Defendant over the
course of that period, she also expressed concern about the
level of attention being given to her claims. Id.
¶¶ 36, 52, 54-55.
filed suit in District Court, Denver County, Colorado on
October 9, 2017, and the action was removed here on November
7, 2017. Notice of Removal [#1] at 1, 4. The July
13, 2018 Amended Scheduling Order established December 3,
2018, as the deadline for rebuttal expert disclosures and
December 14, 2018, as the discovery cut off date. Minute
Order [#29]. On January 3, 2019, Defendant filed the
present Motion [#42]. The Motion concerns Plaintiff's
undisputed failure to include a report authored by her
rebuttal expert Dr. Richard Perrillo (“Perrillo”)
with her Expert Rebuttal Disclosure Certificate
(“Rebuttal Disclosure”). See Motion
[#42] at 2; Response [#46] at 6. As further
explained below, Plaintiff alleges that Dr. Perrillo was
unable to create a report because he lacked requested data
from Dr. Suzanne Kenneally (“Kenneally”).
Response [#46] at 6. Thus, Plaintiff further asserts
that the omission was substantially justified. Id.
September of 2016, Defendant's contract examiner Dr.
Kenneally examined Plaintiff for neuropsychological and
psychological testing. Compl. [#4] ¶ 32. In
March of 2017, Plaintiff requested Dr. Kenneally's raw
data be sent to Dr. Perrillo. Motion [#42] at 2. On
June 22, 2017, Defendant emailed Plaintiff regarding this
request, saying “I just received a call from Dr.
Kenneally's office indicating that they need a written
authorization signed by Catherine Bosier prior to their
sending the raw data.” Pl.'s Ex. 2
[#46-2]. Defendant also provided a fax number to which
Plaintiff could send the authorization. Id. It
appears neither that an authorization form was attached to
the email nor that Plaintiff responded to the email or
otherwise requested information on the required
authorization. See id.
seventeen months later, in a November 26, 2018 email to
Plaintiff regarding deposition scheduling, Defendant also
Dr. Kenneally advised she needs an executed release from
Cathy Bosier to release the raw data to the other two
doctors. I asked if there is a specific form that needs to be
filled out or if a typical medical ROI would work . . . She
advised that turnaround time is about a week to get it
Pl.'s Ex. 4 [#46-4]. Defendant followed up on
November 29, 2018, at 11:55 a.m. with an authorization form
attached to the email. Pl.'s Ex. 3 [#46-3].
Plaintiff replied with the completed form on November 29,
2018 at 2:17 p.m., and Defendant confirmed that it sent the
form to Dr. Kenneally at 5:55 p.m. Pl.'s Ex. 5
[#46-5]. As of the filing of Plaintiff's Response [#46]
on January 24, 2019, Plaintiff had yet to receive Dr.
Kenneally's data. Response [#46] at 6.
December 3, 2018, Defendant received Plaintiff's Rebuttal
Disclosure endorsing Dr. Perrillo as a rebuttal expert.
Def.'s Ex. 1 [#42-1] at 3. Plaintiff did not
attach or enclose a report authored by Dr. Perrillo but
stated that his report is “being prepared but is
waiting upon receipt of Dr. Suzanne Kenneally's raw data,
which has been requested, ” and will be served
“once Dr. Perrillo has received and had a reasonable
amount of time to review Dr. Kenneally's data.”
argues that Plaintiff's failure to comply with the
requirements of Fed.R.Civ.P. 26(a)(2), specifically by not
providing an expert report and disclosures by Dr. Perrillo,
is prejudicial to it and neither substantially justified nor
harmless. Motion [#42] at 6. Thus, Defendant asks
the Court to strike Dr. Perrillo from Plaintiff's
Rebuttal Expert Disclosure and prohibit Plaintiff from
offering any evidence or testimony from Dr. Perrillo at the
trial of this matter, pursuant to Fed.R.Civ.P. 37(c)(1).
Id. at 7. Defendant also requests costs and
attorneys' fees pursuant to Fed.R.Civ.P. 37(c)(10(A).