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  • Insurance Expert Witness’ Supplemental Reports Excluded When Not in Compliance with Pretrial Order

    Expertise Description

    Insurance ExpertThe Eighth Circuit Court of Appeals recently heard an appeal from a district court's denial of a motion for new trial on the basis of excluded expert evidence.A jury awarded an insured under a commercial-property insurance policy $76,000 for covered hail and wind damage to the exterior of two properties, but it found that the policy didn’t cover the water damage to the interiors.A hail storm damaged Appellant’s properties, and she sought coverage replacing the damaged portions of the homes. Insurance Company disputed the claims, and they went to trial on two of the properties. The parties didn’t dispute that hail and wind damage to the properties' exteriors constituted a covered loss under the policy. However, they disagreed on the amount of coverage and whether the policy covered water damage to the properties' interiors. Appellant claimed that damage to the roofs and windows let water seep inside and that the resulting interior water damage was a covered loss. Insurance Company said that water leaked into the properties because of deferred maintenance, not hail damage. As such, it refused to cover the interior damage.Appellant enlisted a public adjuster and a roofing consultant to assess the damage. The insurance expert inspected the properties and issued a written expert report, which described hail and wind damage to both properties' exteriors, particularly the roofs. The insurance expert observed interior water damage at both properties, and based on its location and its appearance shortly after the storm, he opined that it was from water entering the homes through the external damage. He also said that the roofs and other items at both properties should be replaced. Appellant’s roofing expert issued an expert report based solely on his review of the insurance expert's and Insurance Company's reports and photographs of the properties. In that report, he opined regarding on property that "[w]ater intrusion within the home may be the result of defects within the . . . roof caused by wind and hail impact." The report didn’t mention water damage to one of the property's interior but did note that the roof was damaged and that it required major repair or replacement.Appellant’s roofing expert wanted to take a core sample of the property's roof to determine how it was constructed, but snow and ice kept him from doing so at the time of his initial report. But he went to the property later to take the samples, which showed the presence of moisture both within a top roof layer and an older layer beneath it. The expert believed this indicated that the roof needed to be replaced rather than repaired. The parties deposed the roofing expert, and he mentioned these findings. However, Insurance Company’s counsel objected to his mentioning those findings without a supplemental report. Appellant’s roofing expert did draft a supplemental report, but Appellant didn’t disclose it at the time.The original deadline for Appellant to disclose expert witnesses and reports was postponed, largely on stipulation of the parties, six times, and the final amended progression order set the deadline. Appellant subsequently served Insurance Company with supplemental expert reports from both of her experts. The supplemental report from Appellant’s insurance expert included updated damages calculations for each property based both on updated pricing for materials and on the inclusion of interior water damage not presented in the insurance expert's original report. The supplemental report for Appellant’s roofing expert was the as-yet-undisclosed report her roofing expert drafted addressing the core-sampling results. At that time, jury trial was set, and the supplemental reports were thus untimely not only regarding the progression order but also under Federal Rule of Civil Procedure 26(a)(3)(B)'s requirement that such disclosures be made at least 30 days before trial. Subsequently, the trial was postponed because of Appellant's counsel's illness.Insurance Company moved to exclude the supplemental insurance and roofing experts’ reports. The district court noted that, although Appellant's disclosure was untimely under the federal rules at the time it was served, it wouldn’t exclude the reports based on this because Insurance Company had at least 30 days' notice due to the extension of the trial date. But the district court excluded any new items of damage in Appellant’s insurance expert's supplemental report, holding that it was “far too late for Appellant to raise new items of damage she has not previously claimed."The district court also excluded from the Appellant’s roofing expert’s report evidence concerning the moisture in the roof as a justification for her insistence that the roof be replaced. The district court observed that Appellant offered no credible excuse why she didn’t provide the supplemental report to Insurance Company at the time it was drafted. The lower court concluded that it would be prejudicial to Insurance Company to allow Appellant to raise a new theory on why replacement rather than repair was required because it didn’t have the opportunity to explore the moisture-in-the-roof theory of replacement during discovery. The trial judge also noted that, although the results of the roofing expert's core sample were discussed at his deposition, Insurance Company was not obligated to presume the issue of replacement due to roof moisture would be raised without a supplemental report.Appellant argued that she was so prejudiced by the incorrect exclusion of certain portions of the supplemental reports by her insurance and roofing expert that the district court should’ve granted her a new trial. Circuit Judge Clarence Beam wrote in his opinion that Federal Rule of Civil Procedure 16(f)(1)(C) allows a district court to "issue any just orders" to sanction parties for failure to follow a pretrial scheduling order and includes "prohibiting the disobedient party from . . . introducing designated matters in evidence" under Rule 37(b)(2)(A)(ii). Further, Judge Beam noted that in Patterson v. F.W. Woolworth Co. (8th Cir. 1986), the Court of Appeals stated that the factors that a court should consider in deciding whether to exclude the testimony of a witness not made known in a manner complying with a pretrial order include: (i) the reason for failing to name the witness; (ii) the importance of the witness's testimony; (iii) opposing party's required time to prepare for the testimony; and (iv) whether a continuance would be useful. These factors, the judge explained, have also been applied to supplemental expert reports disclosed later than provided for in a progression order.The Circuit Court held that the district court was within its discretion when it excluded certain portions of the supplemental expert reports and did consider the Patterson factors. As to the roofing expert’s supplemental report, the district court noted Appellant had no reason for the extreme delay of her disclosure—despite the fact that she had the report six months earlier; the lack of opportunity for Insurance Company to develop evidence and respond to the roof-moisture theory of replacement at the property; that she did not request a continuance; and that "[a] continuance at the eleventh hour was not appropriate." As to the supplemental report of her insurance expert, the district court again noted its "egregiously untimely disclosure" and observed that the new claimed damage was less than 5% of the total damages Appellant sought.Also, the Court held that Appellant wasn’t prejudiced by the exclusion of this evidence resulting in fundamental unfairness, as she could’ve called her roofing expert to support her interior-water-damage theory, which was included in both his original and supplemental reports. Appellant’s insurance expert's original report likewise presented similar opinions and even included the opinion that the roof of one of the properties needed to be replaced. The roofing expert's original report acknowledged that possibility.The Eighth Circuit agreed that the jury clearly rejected Appellant's claim to any interior damage whatsoever, and thus, the exclusion of the new items of interior damage didn’t prejudice that claim. The district court applied the law correctly under the federal rules and acted within the scope of its discretion in excluding certain portions from the supplemental expert reports. The decision was affirmed. Amplatz v. Country Mutual Insurance Company, No. 15-2645, 2016 U.S. App. LEXIS 9540 (Cir. 8 (Minn.) May 25, 2016).

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