Bosier v. American Family Mutual Insurance Co.

          ORDER

          KRISTEN L. MIX, UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Defendant's Motion to Strike Plaintiff's Rebuttal Expert Dr. Richard Perillo [sic] [#42]^[1] (the “Motion”). Plaintiff filed a Response [#46] in opposition to the Motion, ^[2] and 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.^[3] For the reasons set forth below, the Motion [#42] is GRANTED.

         I. Background

         This is 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.

         On May 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.

         Plaintiff 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.

         In 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.

         About seventeen months later, in a November 26, 2018 email to Plaintiff regarding deposition scheduling, Defendant also wrote:

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 produced.

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.

         On 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.” See id.

         Defendant 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). Id.

         II. Analysis

         A. ...