Giovacchini v. The Cincinnati Insurance Company

Background

The plaintiffs sued Cincinnati Insurance Company under a homeowners’ policy for storm-related water damage to the interior and exterior of their home. They asserted claims for breach of contract and breach of the implied covenant of good faith and fair dealing.

The defendant disclosed Jeff Jones of Young & Associates as an expert on the scope and cost of repairs. His work concerned the resulting water damage to interior finishes and excluded exterior repairs, structural repairs, and certain related work. The disclosure also stated that the expert was not retained to address insurance coverage.

The plaintiffs initially disclosed two experts. They later designated Tim Larsen, an attorney and public adjuster, as a rebuttal expert. Larsen was expected to address the scope and assumptions underlying Jones’s report, insurance coverage, the scope and cost of repairs, and the water damage. The plaintiffs did not provide Larsen’s report, curriculum vitae, publication list, list of prior expert testimony, or other disclosures required for a retained expert under Federal Rule of Civil Procedure 26(a)(2)(B).

Parties’ Arguments

Cincinnati moved to strike the rebuttal-expert disclosure and exclude Larsen’s testimony. It argued that the disclosure did not comply with Rule 26(a)(2)(B) and that the proposed testimony was not proper rebuttal testimony. The defendant contended that its experts had not addressed insurance coverage and that the other proposed opinions belonged in plaintiffs’ initial expert reports.

The plaintiffs acknowledged the disclosure failures and offered to correct them. They argued that Larsen could rebut the assumptions underlying Jones’s limited analysis, including the exclusion of exterior repairs, and could explain how those limitations undervalued the repair estimates.

Analysis

Rule 26(a)(2)(B) generally requires a retained expert’s disclosure to include a signed report stating the expert’s opinions and bases, the information considered, supporting exhibits, qualifications, publications, prior testimony, and compensation. A rebuttal report is limited to contradicting or rebutting evidence on the same subject identified in another party’s expert disclosure. A party ordinarily may not use rebuttal testimony to introduce analysis that should have been included in its opening report.

The court said that the plaintiffs’ failure to make the required disclosures, standing alone, could be corrected. The court could consider a later motion for sanctions under Rule 37(c)(1), including attorney’s fees caused by the disclosure failure.

The court nevertheless concluded that the proposed opinions were not proper rebuttal testimony. Opinions about damages and repair costs could have been included in the plaintiffs’ initial expert reports. Opinions about insurance coverage were outside the scope of Jones’s report because he had not addressed coverage, and his retention excluded exterior repairs. The court distinguished the plaintiffs’ cited cases because those cases involved challenges to an expert’s methodology, while this dispute concerned the scope of the work the defendant instructed its expert to perform.

The court also stated that insurance-policy coverage is seemingly a question of law for the court rather than a fact issue for an expert. It noted that the issue could be addressed through direct and cross-examination at trial.

Disposition

The court granted the defendant’s motion and stated that the ruling resolved ECF No. 47. Because the court did not have Larsen’s report, it stated that the plaintiffs could disclose one to cure the Rule 26(a)(2)(B) issues. If they chose that route, they had to provide the report or a schedule for doing so by December 19, 2024. The defendant could reserve any Rule 37(c)(1) request for attorney’s fees until after the expert issues were resolved.