Weiss v. Federal Insurance Company

Background

Richard B. Weiss sued Federal Insurance Company for underinsured motorist coverage arising from a 2007 motor vehicle accident. Weiss identified Dr. Louis C. Saeger as an intended expert witness concerning ongoing neck pain, pain-management treatment, radiofrequency neurotomy treatment, and future medical needs.

Weiss attached Dr. Saeger’s February 2020 report to the complaint. That report summarized an initial pain-management evaluation, Weiss’s history, a diagnostic plan, and potential treatment options. It did not provide a complete statement of the opinions Dr. Saeger would express, the reasons for those opinions, a list of recent cases in which Dr. Saeger had testified as an expert, or a statement of his compensation.

The pretrial scheduling order required Weiss to disclose his principal expert reports by May 28, 2021. During discovery, Weiss repeatedly stated that Dr. Saeger’s report was still pending because further treatment was needed before Dr. Saeger could give an opinion about Weiss’s future prognosis. Weiss told the court about delays in periodic status letters but did not ask to extend the disclosure deadline. At Dr. Saeger’s September 2021 deposition, counsel explained that a final evaluation or diagnostic report could not be completed until after the delayed treatment and a sufficient waiting period.

Weiss later submitted Dr. Saeger’s October 4, 2021 “final” expert report with his opposition to the motion.

Motion and legal standards

Federal Insurance moved to strike the February 2020 report and exclude Dr. Saeger’s trial testimony. It argued that Weiss had not timely provided an expert report meeting Federal Rule of Civil Procedure 26 and that the failure was neither substantially justified nor harmless. Weiss opposed the motion.

Rule 26 requires timely disclosure of certain expert information, including a written report containing the expert’s opinions, the bases and reasons for them, the facts or data considered, qualifications, prior expert testimony, and compensation. Rule 37 generally prevents a party from using information or a witness that was not properly disclosed unless the failure was substantially justified or harmless. In assessing that question, courts consider the importance of the evidence, the explanation for the late disclosure, potential prejudice to the opposing party, and whether a continuance could cure that prejudice.

Court’s analysis

The court agreed that the February 2020 report did not satisfy Rule 26. It characterized the document as a summary of the initial evaluation rather than a compliant expert report. The court rejected the position that Federal Insurance should have asked when the report would be available, stating that Weiss was responsible for meeting his own disclosure deadline.

The court found that the October 2021 report was not timely disclosed and that the delay was not substantially justified. It also found, however, that Dr. Saeger’s opinions were important because they directly concerned Weiss’s claimed need for continuing treatment, which represented a substantial part, if not the majority, of the future medical expenses Weiss sought. The court did not view the opinions as merely duplicative of those of Weiss’s other medical experts.

The court determined that allowing the October report without additional time for Federal Insurance to respond would prejudice the defendant. That prejudice could largely be cured through a continuance, an opportunity to respond, and reimbursement of certain expenses. The court concluded that the resulting delay would not be undue because there had been no pattern of delay or dilatory conduct.

Disposition

Judge Tony N. Leung denied Federal Insurance Company’s Motion to Strike the February 2020 Report and Exclude Dr. Saeger’s Testimony. The court awarded Federal Insurance fees and expenses for Dr. Saeger’s September 27, 2021 deposition and reasonable attorney fees incurred in bringing the motion, with those expenses to be paid by Weiss’s counsel. The parties were directed to try to resolve payment among themselves and to file a joint letter if they could not do so.

The court ordered that an amended pretrial scheduling order issue. It also left prior consistent orders in effect and warned that future noncompliance could result in sanctions, including exclusion or limitation of evidence, striking pleadings, dismissal, or default judgment.