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Career Employment Professionals, Inc. v. Manufacturers Alliance Insurance Co.

United States District Court, S.D. Georgia, Savannah Division

June 27, 2019

CAREER EMPLOYMENT PROFESSIONALS, INC., d/b/a Trace Staffing Solutions, et al., Plaintiffs,
v.
MANUFACTURERS ALLIANCE INSURANCE COMPANY, et al., Defendants.

          ORDER

          Christopher L. Ray United States Magistrate Judge

         Before the Court is plaintiff's Motion to Strike Defendant Zurich's Expert Witness. Doc. 69. For the following reasons, the motion is DENIED.

         BACKGROUND

         Zurich provided a preliminary expert report from Michael Donegan on March 16, 2018. Doc. 69 at 1. This initial report included a preliminary statement indicating that Zurich reserved the right to supplement the disclosure should additional or more accurate information become available. Doc. 69-2 at 2. It then went on to include the initial report of the expert, a curriculum vitae, a list of cases in which the expert had testified in the previous four years, and the required information on the expert's compensation. Id. at 3. It also listed three individuals who could be called upon to testify. Id. at 3-4. Finally, the report included a catalog of reviewed documents. Id. at 19.

         The report indicated that the expert had not concluded review of the Zurich claims files at issue and that his findings were limited to “a review of [plaintiff's expert's] report and supporting materials along with an initial review of the claims at issue.” Id. at 11. The expert provided four opinions in opposition to plaintiff's expert report. Id. at 13-14. The expert opined 1) that the plaintiff's expert's alternative settlement figures were improbable and unreasonable, 2) that Zurich's investigations were reasonable, 3) that the use of defense counsel and independent investigators was appropriate, and 4) that late payment penalties are not uncommon and that these fees if properly coded are not tagged to the policy holder. Id. In short, the expert concluded that Zurich's “overall efforts to manage the claims were conducted in a manner that was consistent with commonly observed workers' compensation insurance industry practices, ” and that the plaintiff's expert report's “methodologies and analysis . . . are flawed.” Id. at 15.

         On January 15, 2019, Zurich provided a supplemental report. Doc. 69 at 4. The supplemental report included a list of the claims reviewed by plaintiff's expert and provided specific findings regarding the allegations of overpayment. Doc. 69-3 at 8. It then reasserted the four opinions as to excessive settlement, improper investigation, excessive defense counsel and private investigation fees, and allegations of improper penalty payments. Id. at 9-13. However, unlike the previous report, the report included specific “examples” of the opinions asserted. Id. Finally, the report indicated that plaintiff's representatives were fully involved in the claims file, that Zurich's management of the files was reasonable and appropriate, and that Zurich “acted in good faith in undertaking its obligations to resolve claims expeditiously and in a manner as financially advantageous as possible.” Id. at 14. In addition to this information, the report also provided 48 pages of analysis of each of the 14 claims listed by plaintiff's expert in his report. Id. at 21- 68.

         Plaintiff argues that the preliminary report did not comply with Fed.R.Civ.P. 26(a)(2)(B) and should be struck, and that the supplemental report is not a permitted supplement under Rule 26(e) and should also be struck. Doc. 69 at 5-11. Zurich opposes, contending that the expert report did comply with Rule 26's requirements and that the delayed time in providing the supplement was as a result of plaintiff's belated production of over 17, 000 documents as well as a dormant discovery period. Doc. 74 at 4-5. Specifically, Zurich contends that on March 30, 2018, plaintiff provided over 17, 000 files to it. Id. at 4. After reviewing these documents (for an undisclosed period of time) Zurich then determined that there was no need for its expert to review the documents and then produced the supplemental report (which it had also retained for an undisclosed period of time). Id. at 5. In the alternative, Zurich argues that the supplementation is harmless. Id. at 9.

         ANALYSIS

         Fed. R. Civ. Pro. 26(a)(2) requires that an expert report must include the following:

(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial ...

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