Insurance lawyers need to read this recent opinion from the Southern District of Texas, McAllen Division. It is styled, Federico Flores Cazares, et al v. Allstate Vehicle And Property Insurance Company.
This case / claim arises out of a claim for property damage made by plaintiffs against Allstate. Allstate sent an adjuster who concluded the property damage was not storm related which would be covered by the policy, rather the damage was wear/tear, and deterioration that occurred over a period of time and not covered by the policy.
Plaintiff’s filed suit in State Court and Allstate had the case removed to Federal Court.
After more than a year of litigation Allstate filed a Motion To Strike Plaintiffs Experts. Noteworthy, is that plaintiffs did not respond to the motion.
The motion is based on Allstate’s assertion that plaintiffs designation of experts does not contain a written report prepared and signed by their retained expert witness and does not state the subject matter nor contain a summary of facts and opinions to which plaintiffs non-retained expert witnesses are expected to testify all in noncompliance with Rule 26. The Court finds the expert designation does not comport with Rule 26 requirements.
A Court may exclude improperly designated experts by considering four factors: “(1) the explanation for the failure to identify the witness; (2) the importance of the testimony; (3) potential prejudice in allowing the testimony; and (4) the availability of a continuance to cure such prejudice.” Rule 26 requires disclosure of the identity of any expert that may be produced at trial. This disclosure of an expert witness must be accompanied by a written report, prepared and signed by the witness, if the witness is retained or specially employed to provide expert testimony in the case. The expert report must contain a complete statement of the witness’s opinions, bases, and reasons for them; facts or data considered by the witness in forming the opinions; exhibits that will be used to summarize or support the opinions; the witness’s qualifications, including the witness’s publications authored in the last 10 years; a list of other cases in the last four years in which the witness testified as an expert or by deposition; and a statement of his compensation. All this must be disclosed in the time frame set forth by the Courts Scheduling Order.
The expert designation filed by the plaintiffs was deficient in these respects and plaintiffs designation of experts was stricken.