Albert D. Seeno Construction Company v. Aspen Insurance UK Limited
- Susan Illston
- 3:17-cv-03765
- U.S. District Court · Northern District of California
- 9
In Seeno Construction v. Aspen Insurance, Judge Illston granted both parties’ motions to strike the opposing expert witness.
Albert D. Seeno Construction Company could not use expert Charles Miller, and Aspen Insurance UK Limited could not use expert Earl Imhoff. The order addressed expert evidence and did not decide the parties’ underlying insurance dispute.
What happened
In Albert D. Seeno Construction Company v. Aspen Insurance UK Limited, the parties asked the court to exclude each other’s expert witnesses. Aspen argued that Albert D. Seeno Construction Company did not properly or timely disclose expert Charles Miller. The construction company argued that Aspen’s expert, Earl Imhoff, relied on confidential mediation materials and addressed whether Aspen acted reasonably and in good faith.
The court found that the construction company’s disclosure of Miller did not meet federal disclosure rules. It lacked required information, including the documents he relied on and a list of prior cases, and was not signed by Miller. The court also found that the later, fuller report came nearly three months late and that the delay was neither justified nor harmless.
Judge Illston granted Aspen’s motion to strike Miller and granted the construction company’s motion to strike Imhoff. She ruled that Imhoff had reviewed the parties’ mediation briefs, which were protected by California’s mediation privilege, and that the court could not reliably determine whether those materials influenced his opinions. The court said the company’s other challenge to Imhoff was moot and found no evidence of bad faith by defense counsel.
The detailed version
- Albert D. Seeno Construction Company v. Aspen Insurance UK Limited · No. 3:17-cv-03765
- Susan Illston
- Oct. 16, 2020
Background
The parties filed cross-motions to strike, meaning to exclude, the opposing party’s expert witness. Aspen Insurance UK Limited moved under Federal Rule of Civil Procedure 37(c)(1) to strike Charles Miller, an expert disclosed by Albert D. Seeno Construction Company, Inc. The construction company moved to strike Aspen’s expert, Earl Imhoff.
The court had set April 27, 2020, as the expert-disclosure deadline and ordered the parties to comply with Federal Rule of Civil Procedure 26(a)(2). That rule requires a specially employed testifying expert to provide a signed written report containing the expert’s opinions, supporting information, exhibits, qualifications, prior expert testimony, and compensation information.
Aspen’s Motion to Strike Charles Miller
The construction company conceded that its initial disclosure of Miller did not comply with Rule 26(a)(2). The disclosure did not identify the documents Miller would rely on, did not include a list of his prior cases, contained only an outline of his anticipated testimony, and lacked Miller’s signature. The company later deposed Silvana Milton, an Aspen claim handler, and produced Miller’s full report on July 17, 2020—approximately three months after the deadline.
Rule 37(c)(1) generally prevents a party from using information or a witness that was not properly disclosed unless the failure was substantially justified or harmless. The court found neither exception applied. It rejected the company’s argument that there was a genuine dispute about whether it could provide a partial report and supplement it later. The court explained that the rules, the scheduling order, and case law required compliance with the deadline, and the company had not asked the court to extend or modify that deadline.
The court also found the failure was not harmless because Aspen received the full report nearly three months late and lost time to prepare for it. The court therefore granted Aspen’s motion to strike Miller.
The Construction Company’s Motion to Strike Earl Imhoff
The construction company argued that Imhoff should be excluded because he reviewed privileged mediation materials and would testify about whether Aspen acted reasonably and in good faith. Because the case was a diversity action governed by California law, the court applied California’s mediation privilege under Federal Rule of Evidence 501.
California law protects mediation communications, negotiations, settlement discussions, and writings prepared for mediation from disclosure, discovery, and admission into evidence, subject to statutory exceptions. The court stated that the privilege is generally applied strictly and does not require a showing of prejudice.
Aspen’s expert disclosure identified both the construction company’s mediation brief and Aspen’s mediation brief as materials Imhoff reviewed. The court concluded that Aspen could not unilaterally waive the privilege covering the construction company’s brief. Although Imhoff stated that he did not rely on the briefs in forming or finalizing his opinions, he acknowledged reviewing them to better understand the construction company’s bad-faith claim. The court found there was no adequate way to determine whether the briefs affected his report or evaluations, consciously or unconsciously.
The court therefore granted the construction company’s motion to strike Imhoff. Because Imhoff was excluded, the court found the construction company’s other challenge to his testimony moot. The court also stated that it found no evidence of bad faith by defense counsel; counsel had indicated at the hearing that they were unaware of California’s mediation privilege, but the disclosure was not accidental.
Disposition
The court granted Aspen’s motion to strike Charles Miller and granted Albert D. Seeno Construction Company’s motion to strike Earl Imhoff.
Read the full 9-page opinion on CourtListener, the free public archive maintained by the Free Law Project.