MatconUSA LP v. Houston Casualty Company et al, No. 2:2019cv01952 - Document 125 (W.D. Wash. 2022)
Court Description: ORDER granting Plaintiff's 107 Motion to Exclude Marsh's Expert Witnesses. Signed by Judge James L. Robart. (LH)
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MatconUSA LP v. Houston Casualty Company et al Doc. 125 Case 2:19-cv-01952-JLR Document 125 Filed 06/29/22 Page 1 of 9 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 MATCONUSA LP, 10 CASE NO. C19-1952JLR ORDER GRANTING MOTION TO EXCLUDE Plaintiff, 11 v. 12 HOUSTON CASUALTY COMPANY, et al., 13 14 Defendants. 15 I. INTRODUCTION 16 Before the court is Plaintiff MatconUSA LP’s (“Matcon”) motion to exclude 17 Defendant Marsh USA, Inc.’s (“Marsh”) expert witnesses. (Mot. (Dkt. # 107); Reply 18 (Dkt. # 124).) Marsh opposes Matcon’s motion. (Resp. (Dkt. # 123).) The court has 19 considered the motion, all materials submitted in support of and in opposition to the 20 // 21 // 22 ORDER - 1 Dockets.Justia.com Case 2:19-cv-01952-JLR Document 125 Filed 06/29/22 Page 2 of 9 1 motion, and the governing law. Being fully advised, 1 the court GRANTS Matcon’s 2 motion to exclude. 3 4 II. BACKGROUND Matcon was hired to perform excavation work for a construction project at 1200 5 Stewart Street in Seattle, Washington. (Bourgeois Decl. (Dkt. # 47) ¶ 3.) As a 6 subcontractor on that project, Matcon enrolled as an insured in an Owner Controlled 7 Insurance Program (“OCIP”) administered by Marsh. (2d Am. Compl. (Dkt. # 30) ¶ 12.) 8 In October 2018, the project’s general contractor, Graham Construction & Management, 9 Inc. (“Graham”) alleged that Marsh was liable for property and other damage at the 10 project site. (Id. ¶ 17.) In July 2019, Graham filed claims against Matcon and the 11 project’s owner, Project Stewart, in King County Superior Court (the “Underlying 12 Lawsuit”). (See Bourgeois Decl. ¶ 8, Ex. E (attaching underlying lawsuit pleadings).) 13 On November 27, 2019, Matcon filed this action for insurance benefits, including 14 defense and indemnity coverage, against its insurer, Defendant Houston Casualty 15 Company (“Houston”). (Compl. (Dkt. # 1).) It amended its complaint on February 13, 16 2020. (Am. Compl. (Dkt. # 19).) On March 31, 2020, the court issued a scheduling 17 order setting the deadline for expert witness disclosures on September 11, 2020; the 18 discovery deadline on November 11, 2020; and the trial date on April 26, 2021. (3/31/20 19 Sched. Order (Dkt. # 22).) 20 21 22 1 Marsh requests oral argument (see Resp. at 1) but the court concludes that oral argument would not be helpful to its disposition of the motion, see Local Rules W.D. Wash. LCR 7(b)(4). ORDER - 2 Case 2:19-cv-01952-JLR Document 125 Filed 06/29/22 Page 3 of 9 1 On June 26, 2020, Matcon moved for leave to amend its complaint to add Marsh 2 and Defendant Crum & Forster Specialty Insurance Co. (“CFSIC”) as Defendants based 3 on information revealed in discovery. (MTA (Dkt. # 27).) The court granted the motion 4 on July 20, 2020 (see 7/20/20 Order (Dkt. # 29)), and Matcon filed its second amended 5 complaint the next day (2d Am. Compl.). 6 On November 10, 2020, before the expiration of the original discovery deadline 7 but after the original expert witness disclosures deadline, Houston filed an unopposed 8 motion to continue the trial date by six months. (MTC (Dkt. # 51).) Houston argued that 9 the joinder of Marsh and CFSIC as Defendants altered the scope of the lawsuit and 10 required the parties to engage in additional discovery. (Id. at 1-2.) On November 17, 11 2020, the court found good cause to grant Houston’s motion to continue (11/17/20 Order 12 (Dkt. # 53)) and issued an amended scheduling order setting the discovery deadline on 13 May 28, 2021; the dispositive motions deadline on June 29, 2021; and the trial date on 14 November 8, 2021 (11/17/20 Sched. Order (Dkt. # 54) at 1). The court did not, however, 15 set a new expert witness disclosures deadline because that deadline had already expired 16 by the time Houston filed its motion to continue. (See id. (leaving expert witness 17 disclosure and discovery motions deadlines blank).) 18 On December 16, 2020, Matcon, Houston, and CFSIC jointly moved the court to 19 set a new expert witness disclosures deadline. (12/16/20 Mot. (Dkt. # 60).) Marsh did 20 not “agree to or join” the motion because it anticipated that it would “soon be dismissed 21 from the case.” (6/6/22 Williams Decl. (Dkt. # 108) ¶ 3, Ex. A.) Magistrate Judge 22 ORDER - 3 Case 2:19-cv-01952-JLR Document 125 Filed 06/29/22 Page 4 of 9 1 Theresa L. Fricke granted the motion and set the expert witness disclosures deadline on 2 April 2, 2021. (12/16/20 Order (Dkt. # 61).) 3 On March 22, 2021, the court adopted Magistrate Judge Fricke’s report and 4 recommendation on Marsh’s motion to dismiss. (3/22/21 Order (Dkt. # 70).) 5 Specifically, the court granted Marsh’s motion to dismiss Matcon’s claim for tortious 6 interference with economic relations but denied its motion to dismiss Matcon’s 7 negligence claim. (See generally id.) Marsh then began to engage in discovery. (See 8 8/16/21 Williams Decl. (Dkt. # 78) ¶¶ 3, 5; see also Resp. at 5 (“With issues for 9 discovery and further litigation now set by the pleadings, Marsh served document 10 11 requests on Matcon on April 22, 2021 . . . .”).) On August 5, 2021—months after the discovery, expert witness disclosures, and 12 dispositive motions deadlines that the court set in its November 17 and December 16, 13 2020 orders had already passed—Marsh moved the court for a one-year continuance of 14 the trial date and pretrial deadlines. (8/5/21 Mot. (Dkt. # 75).) Although it had been 15 added as a defendant in July 2020, Marsh argued that the continuance was necessary 16 because it was “recently added” to the case and needed additional time to complete 17 discovery. (Id. at 3-4.) Matcon opposed the motion but suggested that a “short” 18 extension of three to six months “may be warranted” because the Underlying Lawsuit had 19 not yet resolved. (Matcon Resp. to 8/5/21 Mot. (Dkt. # 77) at 5.) The court denied 20 Marsh’s motion, finding that Marsh had not established good cause that would justify a 21 one-year continuance of the trial date. (8/30/21 Order (Dkt. # 82).) Nevertheless, the 22 court invited the parties to file a stipulated motion if they wished to move their trial to the ORDER - 4 Case 2:19-cv-01952-JLR Document 125 Filed 06/29/22 Page 5 of 9 1 end of the court’s trial calendar and informed them that if they did so, the court would 2 “issue a new scheduling order with respect to the remaining unexpired deadlines.” (Id. at 3 7.) 4 The parties did not accept the court’s invitation. Instead, on September 16, 2021, 5 Matcon and Marsh jointly moved the court for a six-month continuance of the trial date 6 and all pretrial deadlines. (9/16/21 Mot. (Dkt. # 83).) They argued that they had good 7 cause for an extension because the Underlying Lawsuit had not yet resolved and, as a 8 result, “Matcon’s claim for indemnity coverage [was] not yet ripe for trial.” (Id. at 3.) 9 Matcon represented that it had “reached an agreement in principle” in the Underlying 10 Lawsuit in March 2020 “that would resolve all claims made by and against Matcon,” but 11 that no final agreement had been signed because Project Stewart and Graham had not 12 resolved the claims between them. (Id. at 3 (citing 9/6/21 Sleight Decl. (Dkt. # 84) 13 ¶¶ 4-7).) Matcon expected, however, that the Underlying Lawsuit would be “finally 14 resolved in the near future.” (Id. (citing Sleight Decl. ¶ 8).) The court denied the joint 15 motion but again offered to move the parties’ trial to the end of its calendar. (9/16/21 16 Order (Dkt. # 86).) 17 On September 23, 2021, the court held a telephonic conference with the parties to 18 discuss the case schedule. (9/23/21 Min. Entry (Dkt. # 88); 9/23/21 Min. Order (Dkt. 19 # 89).) After hearing argument, the court vacated the November 8, 2021 trial date; reset 20 trial on August 29, 2022; and granted in part Marsh’s request to reopen discovery. 21 (9/23/21 Min. Order.) The court granted Marsh leave to take the depositions of three 22 witnesses; granted the parties leave to “examine the disclosed expert witnesses on issues ORDER - 5 Case 2:19-cv-01952-JLR Document 125 Filed 06/29/22 Page 6 of 9 1 of damages after the underlying state-court lawsuit is resolved”; and set a May 2, 2022, 2 deadline for completing this additional discovery. (Id.) The court directed the Clerk to 3 “issue a revised scheduling order that sets the trial date on August 29, 2022, and resets 4 the discovery deadline, attorney settlement conference deadline, and remaining unexpired 5 pretrial deadlines based on this new trial date.” (Id. (emphasis added); see 9/24/21 6 Sched. Order (Dkt. # 91) at 1-2 (setting new deadlines consistent with the court’s 7 direction).) 8 The court heard nothing more from the parties until May 16, 2022, when 9 Defendants filed motions for summary judgment. (See Marsh MSJ (Dkt. # 92); CFSIC 10 MSJ (Dkt. # 93); Houston MSJ (Dkt. # 99).) Matcon then moved the court either to 11 strike Defendants’ motions as untimely because the court had not reset the expired 12 dispositive motions deadline in its September 24, 2021 scheduling order or, in the 13 alternative, to allow Matcon to file its own motion for summary judgment. (Matcon 14 5/17/22 Mot. (Dkt. # 103).) The court determined that briefing on the motions for 15 summary judgment was in the interest of effective case management; denied Matcon’s 16 request to strike Defendants’ motions; and granted Matcon leave to file its own motion. 17 (5/17/22 Order (Dkt. # 104).) Matcon did so on May 19, 2022. (Matcon MSJ (Dkt. 18 # 105).) 19 On May 24, 2022, Marsh’s attorney emailed to counsel for the parties copies of 20 the expert reports of Robert Titus and Olie Jolstad. (6/6/22 Williams Decl. ¶ 4, Ex. B 21 (email from Marsh’s attorney); id. ¶ 5, Ex. C (“Titus Report”); id. ¶ 6, Ex. D (“Jolstad 22 Report”).) In his report, Mr. Titus opines, in relevant part, that “Marsh acted within the ORDER - 6 Case 2:19-cv-01952-JLR Document 125 Filed 06/29/22 Page 7 of 9 1 standard of care expected for OCIP Administrators” and that “Matcon failed to act as a 2 reasonable insured.” (Titus Report at 2; see also id. at 8.) Similarly, Mr. Jolstad opines, 3 in relevant part, that “Matcon failed to comply with insurance industry customs, practices 4 and standards”; that “Matcon failed to act as a reasonable insured”; that “Marsh properly 5 discharged the claims-related services it represented it would provide regarding the 6 Project Stewart OCIP”; and that “[n]othing Marsh did or did not do as the OCIP 7 Administrator deprived Matcon of benefits due under the OCIP’s insurance agreements.” 8 (Jolstad Report at 1; see also id. at 9-17.) Neither report addresses Matcon’s claimed 9 damages in this case. (See generally Titus Report; Jolstad Report.) According to 10 Matcon, Marsh did not notify it at any time prior to May 24, 2022, that it had retained 11 Mr. Titus and Mr. Jolstad as testifying experts. (6/6/22 Williams Decl. ¶¶ 5-6.) 12 III. ANALYSIS 13 Matcon moves to exclude Marsh’s expert witnesses either because Marsh’s 14 disclosures were untimely or because the experts propose to offer inadmissible opinions 15 on ultimate questions of law. (See generally Mot.) The court agrees that Mr. Titus and 16 Mr. Jolstad must be excluded because Matcon’s disclosure was untimely. 2 The last 17 expert witness disclosure deadline the court set in this case was April 2, 2021, and the 18 court did not extend that deadline in any subsequent order. (See 12/16/20 Order; see also 19 8/30/21 Order (stating the court would reset the “remaining unexpired pretrial deadlines” 20 21 22 2 Because the court resolves the motion on the basis of untimeliness, it does not address Matcon’s argument that Mr. Titus and Mr. Jolstad offer inadmissible opinions on ultimate questions. ORDER - 7 Case 2:19-cv-01952-JLR Document 125 Filed 06/29/22 Page 8 of 9 1 if the parties stipulated to move trial to the end of the trial calendar (emphasis added)); 2 9/23/21 Min. Order (directing the Clerk to reset the “remaining unexpired pretrial 3 deadlines” (emphasis added)); 9/24/21 Sched. Order.) Thus, Marsh’s May 24, 2022 4 service of its expert witness disclosures was over 13 months late. Because Marsh has not 5 shown that its failure to timely disclose those witnesses was substantially justified or 6 harmless, Marsh may not use those witnesses at trial. See Fed. R. Civ. P. 37(c)(1). 7 Marsh asserts that because the September 24, 2021 scheduling order left the expert 8 disclosures deadline blank, that deadline necessarily reverted to May 31, 2022, or 90 days 9 before trial, in accordance with Federal Rule of Civil Procedure 26(a)(2)(D)(i). (Resp. at 10 8-11.) That rule, however, applies only in the absence of a stipulation or court order. 11 Fed. R. Civ. P. 26(a)(2)(D)(i). Here, a scheduling order has been in place since March 12 2020, and the court was clear in its September 23, 2021 order that its updated scheduling 13 order would reset only the unexpired deadlines, along with the deadlines for limited 14 additional discovery and the attorney settlement conference. (See 3/31/20 Sched. Order; 15 9/23/21 Min. Order; 9/24/21 Sched. Order.) Therefore, the default deadline in Rule 16 26(a)(2)(D)(i) does not apply. 17 Marsh also argues that the court’s order allowing the parties to “examine the 18 disclosed expert witnesses on issues of damages after the underlying state-court lawsuit is 19 resolved” necessarily implies that the court extended the expert witness disclosures 20 deadline. (Resp. at 9 (quoting 9/23/21 Min. Order).) Marsh is mistaken. The court’s 21 order limited additional discovery to three depositions for Marsh and the examination of 22 already-disclosed expert witnesses on damages issues after the resolution of the ORDER - 8 Case 2:19-cv-01952-JLR Document 125 Filed 06/29/22 Page 9 of 9 1 Underlying Lawsuit and before May 2, 2022. (9/23/21 Min. Order.) Nothing in that 2 order can reasonably be read to reopen discovery to allow the disclosure of new expert 3 witnesses, let alone to permit disclosure after the May 2, 2022 limited discovery deadline. 4 Finally, the court notes that Marsh’s late-disclosed expert witnesses opine only on 5 the standards of care for OCIP administrators and insureds—issues that do not depend on 6 the settlement of the Underlying Lawsuit. (See Titus Report; Jolstad Report.) Marsh 7 does not explain why it could not have retained and disclosed its standard of care experts 8 long before May 2022. (See generally Resp.) 9 10 11 12 IV. CONCLUSION For the foregoing reasons, the court GRANTS Matcon’s motion to exclude Marsh’s expert witnesses (Dkt. # 107). Dated this 29th day of June, 2022. 13 14 A 15 JAMES L. ROBART United States District Judge 16 17 18 19 20 21 22 ORDER - 9
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