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Danielle Weekes, An Individual v. Ohio National Life Assurance Corporation

December 9, 2011


The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge



Three motions are pending in this case: (1) plaintiff Danielle Weekes moves to amend her complaint to add a punitive damages claim (Dkt. 17); (2) defendant Ohio National Life Assurance Corporation moves to strike plaintiff's expert affidavit and to exclude plaintiff's expert from testifying at trial (Dkt. 25); and (3) Ohio National moves, alternatively, to strike portions of plaintiff's expert report (Dkt. 24). The Court finds that the decisional process would not be aided by oral argument, and will resolve these motions after consideration of the parties' written submissions. D. Idaho L. Civ. R. 7.1(d).

For the reasons expressed below, the Court will grant the motion to amend the complaint. The Court will also grant Ohio National's motion to exclude plaintiff's expert from testifying. Ohio National's alternative motion to exclude portions of the expert's report is thus moot.


Plaintiff's husband, Bart Weekes, died while he had two separate life insurance policies in place. Ohio National denied coverage under its policy, contending that Mr. Weekes was required to terminate his other life insurance policy before the Ohio National policy became effective. There is no such condition precedent in the contract, however, which prompted Ms. Weekes to sue the company for breach of contract, bad faith, and fraud.

Recently, this Court summarily adjudicated the breach of contract claim in Ms. Weekes' favor and the fraud and bad faith claims in Ohio National's favor. The case is not over yet though because Ms. Weekes seeks to amend her complaint to add a punitive damages claim.*fn2

Before resolving the motion to amend, the Court will address Ohio National's motions to strike plaintiff's expert testimony. As will be discussed, the existence of expert testimony is one factor Idaho courts consider in determining whether plaintiffs should be permitted to seek punitive damages.


Ohio National asks the Court to strike Tim Terry's entire expert report and to exclude Terry from testifying at trial on the grounds that Mr. Terry did not actually prepare his expert report.

Federal Rule of Civil Procedure 26(a)(2) requires parties to disclose the identity of their expert witnesses and to include a written report. Fed. R. Civ. P. 26(a)(2)(A)-(B). Among other requirements, the written report must be "prepared and signed" by the witness. Fed. R. Civ. P. 26(a)(2)(B).

Failure to disclose an expert witness or provide the required information results in exclusion of the witness "unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). The burden of proving an excuse is on the party facing sanctions, and district courts have "particularly wide latitude" in determining whether discovery sanctions should issue. Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106-07 (9th Cir. 2001).

On July 15, 2011, plaintiff timely identified Terry as her expert. She also supplied a lengthy summary of Terry's anticipated testimony -- entitled "Expert Witness Disclosure" -- but Terry did not sign the document. Plaintiff's counsel did. See Expert Witness Disclosure, Ex. A to Diddle Aff., Dkt. 48.

On August 9, 2011, Ohio National moved to strike the expert report because Terry had not prepared and signed the report. Motion to Strike Plaintiff's Expert Witness Disclosure and Exclude Expert, Dkt. 11. That same day, plaintiff supplied an affidavit signed by Terry, and Ohio National withdrew its motion.

Ohio National deposed Terry a few weeks later. He testified that he had not formed opinions regarding the case as of July 15, 2011 -- the date plaintiff's counsel submitted the expert disclosure. Terry's deposition testimony prompted Ohio National to file the instant motion, which again seeks to exclude Terry as an expert. After this motion was on file, Terry submitted corrections to his deposition testimony. In the corrections, Terry changed his testimony regarding his conversations with counsel before July 15.

Ohio National argues that these corrections must be stricken under a corollary to the sham affidavit rule. Alternatively, Ohio National argues that even if the corrections are allowed, Terry's expert report should be stricken because Terry did not "prepare" his expert report within the meaning of Rule 26. The Court agrees on both counts.

1. Corrections to Deposition Testimony

Turning first to the deposition testimony, the relevant testimony concerns two telephone conversations between plaintiff's counsel and Terry during the spring and summer of 2011 -- before plaintiff submitted the July 15 expert disclosure. These conversations were recorded in Terry's time sheets as having occurred on May 18 and July 12. Mr. Terry testified about the May 18 conversation as follows (with the corrections shown in italics):

Q Now, I want to go back to your time entry on 5/18, the first time entry. At the end it says 'teleconference with counsel." Do you see that?

A. Oh, yes, I do.

Q. What do you recall of that telephone call?

A. Nothing specific stands out. Chronology of the case, the framework of the case, what happened when, discussion of each of these elements in either brief or-

Q. Did you express any of your opinions in that conference?

A. I had no opinions at that point.

Corrected Testimony: I had developed a number of viewpoints about the case which I expressed to counsel. My opinions were finalized later based upon all the materials provided to me -- such opinions were expressed in my affidavit.

Terry Dep., at 28:13-23 (as quoted in Ohio National's Reply, Dkt. 37, at 4); Ex. A to Terry Aff., Dkt 34-1 (corrections to deposition).

Mr. Terry testified about the July 12, 2011 conversation with plaintiff's counsel as follows:

Q. I want to come down to 7/12, the 7/12 entry.

A. Yes, sure.

Q. And it says "teleconference with counsel."

A. Yes.

Q. What do you recall of that conversation?

A. I can't really splice it out of there and indicate what the topic was. From looking at the sequence of review of material, it most probably included ...

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