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Elhouty v. Lincoln Benefit Life Co.

United States District Court, E.D. California

April 23, 2015

KAMIES ELHOUTY, Plaintiff,
v.
LINCOLN BENEFIT LIFE COMPANY, et al., Defendants.

ORDER GRANTING DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S EXPERT DESIGNATION (Doc. 26)

JENNIFER L. THURSTON, Magistrate Judge.

Defendant moves the Court for an order striking Plaintiff's designation of experts. (Doc. 26) Defendant asserts that, though Plaintiff served his expert designation timely, he failed to provide an expert report and, indeed, has continued to fail to do so. Id. at 4-5. For the reasons set forth below, the motion is GRANTED.[1]

I. Background

In this action, Plaintiff contends that on February 26, 2006, Defendant issued an insurance policy on the life of Salim Friwar in the face amount of $2, 000, 000. (Doc. 1-1 at 11) The policy required payment within 61 days of the due date and required a 30-day notice of its cancellation or lapse. Id . After Defendant issued the policy Plaintiff "obtained ownership" of it. Id.

On July 24, 2013, Defendant invoiced Plaintiff for the quarterly premium in the amount of $31, 250 and the invoice instructed, "Please Pay This amount by August 23, 2013." (Doc. 1-1 at 11, 13) On September 23, 2013 but posted on September 25, 2013, Plaintiff made two payments of $15, 000 and $16, 250 to Defendant. Id. at 11, 14. Defendant accepted the payments and has not returned them. Id. at 11. However, on September 22, 2013, Defendant notified Plaintiff that the policy had lapsed due to the failure to pay the quarterly premium within the 30-day grace period. Id. at 11, 16. Other than the invoice and this letter, Plaintiff alleges she was not provided a notice that her policy would lapse within 30 days. Id. at 11. Plaintiff attempted to make a quarterly payment in January 2014[2] but Defendant rejected it and claimed the policy had lapsed. Id . In this litigation, Plaintiff seeks a declaration that the policy remains in effect based upon Defendant's acceptance of the September 2013 payments. Id. at 12.

II. Motion to strike Gregory Wimmer

When Plaintiff made his expert disclosure, he identified, "Gregory G. Wimmer... as Plaintiff's retained expert to testify on his behalf." (Doc. 26-2 at 21) Plaintiff reported that,

Mr. Wimmer will testify regarding the following: industry standards regarding life insurance policies in general; agency standards and practice relating to lapses in life insurance policies; how premium payments are processed; the agency standards and practice relating to the reinstatement of life insurance policies; the agency standards and practice relating to grace periods applicable to life insurance premium payments; the general duties and responsibilities of agents and brokers; good faith - bad faith; and coverage disputes.

Id. at 21. Plaintiff reported further,

At the time of the preparation of the instant disclosure, Mr. Wimmer has not been provided and has yet to review any documents in this matter. However, Mr. Wimmer will be provided with documentation and the instant disclosure will be supplemented providing the same. It should also be noted that Mr. Wimmer has yet, to prepare a written report. At such time as Mr. Wimmer prepares said report, the instant disclosure will be supplemented with a copy of said report.

Id. Thus, Defendant's motion focuses on Plaintiff's failure to provide the expert report at the time he made his expert designation or, even, since this time. (Doc. 6-7)

III. Analysis

Rule 26(a)(2) provides that a party must disclose the identity of any expert witness it intends to use at trial. Fed.R.Civ.P. 26(a)(2)(A). If the expert witness is retained or specially employed to provide expert testimony, the disclosure must include a report that is prepared and signed by the expert. Fed.R.Civ.P. 26(a)(2)(B). The report of the specially retained expert must detail the expert's opinions, the bases for the opinions, the information considered to form the opinions, the expert's qualifications, the exhibits the expert intends to use to illustrate the opinions, the cases upon which the expert has testified as an expert and the amount the expert is being paid, among other information. Fed.R.Civ.P. 26(a)(2)(B). The expert may not be deposed until the report has been provided. Fed.R.Civ.P. 26(b)(4)(A)

Parties are required to make expert disclosures "at the times and in the sequence that the court orders." Fed.R.Civ.P. 26(a)(2)(D). On August 21, 2014, the Court held the scheduling conference and thereafter, issued the scheduling order. (Doc. 16) ...


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