Bad Faith Insurance And More On Experts

Insurance attorneys who get involved in very many lawsuits will have situations where an expert is required.  When that happens, it is vital to understand what the courts will accept and not accept as it relates to experts.  This is discussed in a 2022, opinion from the Northern District of Texas, Dallas Division.  The opinion is styled, Richard Kim D/B/A Centre Cleaners v. Nationwide Mutual Insurance Company.

Plaintiff had an insurance policy with Nationwide that covers hail damage claims.  Plaintiff filed a claim asserting that his roof had been damaged by hail.  Nationwide denied the claim.  Plaintiff had an expert and named his as someone who would testify in the lawsuit and filed the appropriate experts’ report.  Nationwide filed a motion to strike the expert.  The Court granted Nationwide’s motion.

Under Rule 26(a)(2)(B)(i) and (ii), the disclosures of an expert witnesses who is retained or specially employed to provide expert testimony in the case or whose duties as the party’s employee regularly involve giving expert testimony must be accompanied by a written report that contains “a complete statement of all opinions the witness will express and the basis and reasons for them” and “the facts or data considered by the witness in forming them.”  The Advisory Committee’s Note to Rule 26 provides that expert witnesses “must prepare a detailed and complete written report, stating the testimony the witness is expected to present during direct examination, together with the reasons therefor.  These Notes also explain that the purpose of the reports is to avoid the disclosure of ‘sketchy and vague’ expert information, as was the practice under the former rule.  The purpose of a ‘detailed and complete’ expert report as contemplated by Rule 26(a) . . . [is to] prevent an ambush at trial.  The test of a report is whether it was sufficiently complete, detailed and in compliance with the Rules so that surprise is eliminated, unnecessary depositions are avoided, and costs are reduced.

Nationwide maintains that Kim has failed to disclose the key information that Lupfer relied on in forming his opinions because his report states that he did not know what materials he reviewed prior to inspecting the Property and did not identify what he reviewed.  Kim responds that in Lupfer’s deposition he said that he “did not think” he reviewed anything before making his report, and that Lupfer specified in his deposition testimony all of the evidence on which he relied.

Lupfer’s report does not comply Rule 26(a)(2)(B)(ii).   There are multiple deficiencies in his report.  For example, Lupfer states that estimates “may or may not have been” reviewed prior to his inspection.  This plainly violates Rule 26(a)(2)(B)(ii), which requires that Lupfer disclose “the facts or data considered” in forming his opinions.  Furthermore, in his deposition, Lupfer testified that he reviewed sources (i.e., a hail storm map) that were not disclosed in the report.  He also testified that, although his report stated that he reviewed the interior of the building, he did not actually do so.

Having concluded that Kim did not comply with Rule 26(a)(2)(B)(ii) the court now determines in its discretion whether to quash (i.e., to exclude) Lupfer’s report and opinions or to impose some lesser sanction.  Under the circumstances here—which do not involve willful disobedience of a court order or a complete failure to comply with Rule 26(a)(2)(B)—the court concludes that it should impose a sanction less drastic than complete exclusion of Lupfer’s expert testimony.  That lesser sanction is this: within 60 days of the date this memorandum opinion and order is filed, Kim must serve an amended report of Lupfer that fully complies with all requirements of Rule 26(a)(2)(B).

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