United States District Court, D. Arizona
[Copyrighted Material Omitted]
For Brenda Temple, Plaintiff: Jeffrey Lewis Raizner, Kevin B Wein, Michael Patrick Doyle, LEAD ATTORNEYS, Doyle Raizner LLP - Phoenix, AZ, Phoenix, AZ.
For Hartford Insurance Company of the Midwest, Gallagher Bassett Services Incorporated, Defendants: Kelly Ann Hedberg, Steven G Mesaros, LEAD ATTORNEYS, Renaud Cook Drury Mesaros PA, Phoenix, AZ; Deanne Campbell Ayers, Ayers & Ayers, Colleyville, TX.
For Tonya L Murray, Defendant: Deanne Campbell Ayers, LEAD ATTORNEY, Ayers & Ayers, Colleyville, TX; Kelly Ann Hedberg, Kelly Ann Hedberg, Steven G Mesaros, LEAD ATTORNEYS, Renaud Cook Drury Mesaros PA, Phoenix, AZ.
MEMORANDUM OF DECISION AND ORDER
Stephen M. McNamee, Senior United States District Judge.
Pending before the Court is Defendants' motion for summary judgment, which is fully briefed. (Docs. 64-65, 71-75.) Also pending is Defendants' motion to strike Plaintiff's expert, which is fully briefed. (Docs. 66-68.) After reviewing the briefs and having determined that oral argument is unnecessary, the Court will deny Defendants' motion for summary judgment and deny Defendants' motion to strike Plaintiff's expert.
MOTION TO STRIKE
Defendants separately move to strike Plaintiff's expert, Frank Weedon. (Doc. 66.) Pursuant to Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), Defendants contend that Mr. Weedon is not qualified to render an expert opinion on the claims handling aspects of Arizona's workers' compensation system. (Id.) Plaintiff opposes the motion to strike and Defendants have replied in support. (Docs. 67, 68.)
The District's Local Rules permit a motion, a response, and a reply. LRCiv 7.2(b)-(d). They further provide that motions objecting to, arguing about, or seeking to strike evidentiary matters be raised " in the objecting party's responsive or reply memorandum and not in a separate . . . filing." Id. 7.2(m)(2). " The purpose of LRCiv 7.2(m)(1) is to require unitary briefs, including objections to evidence and to the propriety of arguments, within the page limits or beyond them by leave of the court." Pruett v. Arizona, 606 F.Supp.2d 1065, 1074 (D. Ariz. 2009). Litigants may not divide their briefs and multiply their
page limits by styling part of the argument as a separate motion to strike. See Custom Vehicles, Inc. v. Forest River, Inc., 464 F.3d 725, 727-28 (7th Cir. 2006) (Easterbrook, J.) (stating that a " motion to strike" that is argument for the lack of merit of the underlying motion is unauthorized and improper). Whether an unauthorized filing should be stricken is within the Court's discretion. See Golden Gate Hotel Ass'n v. City and Cnty. of San Francisco, 18 F.3d 1482, 1485 (9th Cir. 1994).
The Court finds that Defendants have violated the District's Local Rule by dividing their briefs and multiplying their page limits by styling part of their argument as a separate motion to strike. The Court will exercise its discretion and will deny Defendants' motion to strike the testimony of Plaintiff's expert, Frank Weedon.
Moreover, in this case, Mr. Weedon is qualified to provide his testimony as an expert under Fed.R.Evid. 702,
Daubert, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469, and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).
" A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case." Fed.R.Evid. 702. Trial judges have a responsibility to act as gatekeepers to exclude all types of unreliable expert testimony. Fed.R.Evid. 702 (Advisory Committee's Notes 2000 Amendments). To exercise this responsibility, " the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable."
Kumho Tire, 526 U.S. at 152.
Daubert sets forth a two-part test for admitting expert testimony that focuses on the reliability and relevancy of the opinion. To be sufficiently reliable, the opinion must be based on " scientifically valid principles." 509 U.S. at 597. Factors that courts have used to evaluate the reliability of an expert's methods include: 1. Whether the expert's method is falsifiable or merely conclusory; 2. Whether the technique has been subject to peer review and publication; 3. The known or potential error rate of the technique; 4. The existence and maintenance of standards and controls; 5. Whether the technique has general acceptance in the relevant expert community; 6. Whether the substance of the testimony was prepared specifically for the instant litigation; 7. Whether the expert's extrapolation from an accepted premise to his conclusion was justifiable; 8. Whether the expert has adequately accounted for obvious alternative explanations; 9. Whether the expert is being as careful as he would be in his professional work outside his paid litigation consulting; 10. Whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give. See id. at 593-95; Daubert v. Merrill Dow Pharms. Inc., 43 F.3d 1311, 1317 (9th Cir. 1995); Claar v. Burlington N.R.R., 29 F.3d 499, 502-03 (9th Cir. 1994); see also
Kumho Tire, 526 U.S. at 149-151. In Kumho Tire, the Court extended such Daubert analysis to all expert testimony of " specialized knowledge" even if decidedly non-scientific.
To be relevant, the testimony must " assist the trier of fact to . . . determine a fact in issue."
Daubert, 509 U.S. at 592.
The requirement that the opinion testimony assist the trier of fact goes primarily to relevance. See Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010). Shaky but admissible expert opinion evidence is to be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion. Id.
First, the Court finds that Mr. Weedon's opinions are sufficiently the product of reliable principles and methods. Mr. Weedon is familiar with well-known, industry-wide standards for investigating and handling workers' compensation claims. The standards of conduct for insurers and adjusters in Arizona follow the National Association of Insurance Commissioners (" NAIC" ) model rules, which were adopted in the Arizona Unfair Claims Settlement Practices Act, A.R.S. § 20-461 (2012). These standards are national as they have been adopted in forty-six of the fifty states, including Arizona, Texas, and Louisiana, where Mr. Weedon is licensed. Albeit in Texas, Mr. Weedon has over twenty years of experience in the workers' compensation industry, including as a licensed adjuster and board-certified attorney, who has represented and advised various workers' compensation carriers and adjusters regarding claims handling practices, taught workers' compensation adjusters (from multiple jurisdictions) the standards for handling claims in good faith, and also represented injured workers. (See Docs. 67-1 and 67-2.)
Next, the Court finds that Mr. Weedon's technical and other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue. Both Arizona law and Ninth Circuit law recognize that experts in the area of insurance claim handling are proper, that they may testify regarding the application of industry standards to claim handling, and that they may refer to legal precedent to the extent necessary to explain the facts of their opinions. See, e.g., Rawlings v. Apodaca, 151 Ariz. 149, 158, 726 P.2d 565, 574 (1986) (stating that an insurer's compliance with industry standards may be relevant to the question of an insurer's alleged bad faith); Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1016 (9th Cir. 2004) (relying upon claims handling expert and holding that " Defendants deviat[ion] from industry standards supported a finding that they acted in bad faith" )
Thus, the Court finds that Mr. Weedon's expert testimony is sufficiently reliable and relevant and his testimony will not be struck from these proceedings.
The following facts are undisputed except as noted. Plaintiff Brenda Temple (" Temple" ) worked as a customer service representative for Stanley Steemer. (Doc. 72-1 at 4-5.) In order to get to her duty station at the call center, a sedentary position, Temple needed to walk up two flights of stairs. (Doc. 65-2 at 32.) Temple states that on her way to her duty station on January 9, 2012, she tripped and fell while walking up a flight of stairs. (Doc. 72-1 at 6-7.) Temple further states that when she fell on the stairs, she injured her knees and hip, and twisted her back. (Id.) Temple called for help and a co-worker, Jason Williams, came to assist her and help her up from her fall. (Id. at 7.) Temple reported her injury to assistant supervisor, Jody Warren, who initiated a work injury report. (Id. at 8-9; Doc. 65-2 at 26.)
That same day, Temple sought medical treatment at a walk-in minor emergency clinic with Dr. Gary Kohring. (Doc. 72-2.) Dr. Kohring reported that Temple's left knee was strained with swelling and pain
radiating into her back. He prescribed medication and kept her off work until January 11th. (Id.)
The next day, on January 10th, Temple went to see Linda Pachuta, a nurse practitioner at the Mayo Clinic, who examined and treated her. (Doc. 72-3 at 42-45.) Pachuta prescribed medication, physical therapy, a knee brace and directed Temple to stay home and rest for the next week and was given a work restriction to that effect. (Id. at 45.)
Defendant Hartford (" Hartford" ) is Stanley Steemer's workers' compensation insurance carrier; Defendant Gallagher Bassett (" Gallagher Bassett" ) served as Hartford's claims handler. (Doc. 65-2 at 29-30.) Gallagher Bassett assigned Tonya Murray (" Murray" ) to adjust the workers' compensation claim submitted on behalf of Temple. (Id.) Murray then commenced her investigation into Temple's claim and recorded her investigative activities in a claim notebook. (Doc. 65-2 at 29; id. at 9-30.)
Murray spoke with Temple on January 18, 2012, and Temple recounted how she came to be injured and that she hurt her left knee, left hip and back. (Id. at 26.) Temple reported that she had no prior injuries to the same body part as was part of her claim for workers' compensation. (Id.) On January 18, 2012, Murray initiated with Mayo Clinic's medical records department to request Temple's medical records and was advised that Mayo Clinic would not release any medical records without a HIPAA medical authorization despite her explanation that workers' compensation does not fall under HIPAA. (Id. at 24.) On January 18, 2012, Murray also wrote to Temple's nurse practitioner, Linda Pachuta at the Mayo Clinic, requesting medical documentation regarding Temple's medical status. (Id. at 31.)
On January 23, 2012, Nurse Pachuta forwarded a work restriction for Temple for January 17, 2012 through February 6, 2012 due to recent work-related injury. (Doc. 72-3 at 37.) On January 25, 2012, Nurse Pachuta forwarded another work restriction for Temple due to work-related injury for the same dates stating that Temple is unable to sit at desk, walk up stairs or stand for long periods due to worsening pain. (Id. at 36.)
On January 24, 2012, Murray faxed a note to Nurse Practitioner Pachuta. (Doc. 65-2 at 32.) Murray acknowledged Pachuta's unable to work restriction for Temple from January 17 to February 6, 2012. (Id. at 32; Doc. 72-3 at 36-37.) Murray requested Pachuta to provide clarification regarding why Temple was unable to perform her work duties, given that her job was sedentary and her employer was willing to accommodate light duty. (Doc. 65-2 at 32.) Nurse Pachuta's responded stating that Temple was unable to work due to her work related injury. (Doc. 72-3 at 36) (emphasis added). Temple was unable to sit at a desk, walk up stairs, or stand for long periods due to worsening pain. (Id.) Without first speaking to Nurse Pachuta, Murray testified that she believed Nurse Pachuta's work restrictions were unreasonable. (Doc. 65-3 at 13.)
As of January 24, 2012, based on her investigation to this point, Murray testified that she did not accept Temple's claim for disability benefits due to lack of supporting documentation of a work-related injury. (Id. at 9; Doc. 72-5 at 9 (Murray testified " There's no confirmation that its related to work" as of January 24th). Murray further testified that she would have been looking for medical documentation confirming that the injuries reported were directly related to how Temple said the accident happened. (Doc. 65-3 at 13.)
When asked about this finding, Murray further explained as follows: " Q: Now, you previously told us that you did not agree with the work restrictions given by the doctor or by the Mayo Clinic. Do you recall saying that? A: I said they were unreasonable." " Q: Did you follow what the doctor said? A: I reviewed the recommendation. Q: And you thought it was unreasonable? A: It was unreasonable." (Doc. 72-5 at 11, 13.) Murray could not describe what additional information she needed to accept Temple's disability benefits claim. " Q: As of -- and as far as something in the report, something that was missing, what did you indicate that you needed to know that was unclear at this point? Having gotten documents from the medical doctors, having talked to the employee, having talked to the employer, what else did you need? A: I wouldn't be able to answer that." (Doc. 72-5 at 8.) Without the benefit of any medical training and without a supporting medical opinion, Murray refused to accept Temple's disability benefits claim. (Id. at 6-7, 11-12.)
On January 25, 2012, Murray hired an investigator to conduct surveillance on Temple. (Doc. 65-2 at 36-42.) Murray advised the surveillance team to contact her if they were " gathering good info to see about an extension if needed." (Doc. 72-4 at 20.) In her claim notebook, Murray stated: " I really don't see how someone would be unable to perform sedentary work with a back injury such as this. I believe we could utilize the results to push for a light duty work release form the physician." (Id.) The surveillance investigator followed Temple as she went about to various medical appointments and summarized that Temple " moved about freely and with no apparent signs of physical impairment." (Doc. 65-2 at 37.)
Temple's treating doctor at the Mayo Clinic, Martina Mookadam, testified that its improper for someone who is not involved in her care to be pressuring her to go back ...