Drange v. Mountain West Farm Bureau Mutual Insurance Company

• Court: District Court, D. Montana
• Decided: March 21, 2023
• Docket: 1:20-cv-00030
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA BILLINGS DIVISION

JODIE and ANDY DRANGE, CV 20-30-BLG-SPW Plaintiffs, VS. ORDER

MOUNTAIN WEST FARM BUREAU MUTUAL INSURANCE COMPANY and DOES 1-100, Defendants.

Before the Court is Defendant Mountain West Farm Bureau Mutual

Insurance Company’s Motion on Objections to Sufficiency of Plaintiffs’ Expert Disclosure. (Doc. 85). Defendant argues the Court should strike Plaintiffs Jodie

and Andy Drange’s expert disclosure for Jon Hooley because it does not comply with the disclosure requirements for a retained expert under Federal Rule of Civil Procedure 26(a)(2)(B).! (Doc. 86 at 3-6). Plaintiffs respond that Hooley is a non- retained expert, and they filed the proper disclosures for Hooley under Rule 26(a)(2)(C). For the following reasons, the Court grants Defendant’s motion in

part and denies it in part.

1 On reply, Defendant objects for the first time to Hooley’s qualifications as an expert in construction matters and to his opinions about the Drange job. (Doc. 93 at 3-5). “The general rule is that [parties] cannot raise a new issue for the first time in their reply briefs.” Ghahremani Gonzales, 498 F.3d 993, 997 n. 3 (9th Cir. 2007) (internal quotation marks omitted). Under Ghahremani, the Court declines to consider the issues Defendant raised solely on reply.

I. Relevant Background The facts of this case are well known to the Court and were extensively reviewed in the Court’s order on summary judgment. (Doc. 73 at 2-5). As such, only those facts relevant to the motion will be recited here.

Pursuant to the Court’s scheduling order (Doc. 76 at 5-6) and Rule

26(a)(2)(C), Plaintiffs disclosed Hooley as a hybrid fact/expert witness. (Doc. 86-

1). Hooley is a general contractor with Big Sky Contractors who provided the

general contracting services to Plaintiffs for the hail damage repairs at issue in this

case. (/d. at 2, 9-10). Plaintiffs designated Hooley as a non-retained expert, so

they “limited the subject matter on which Hooley is expected ... to testify.” (Jd. at

2). Plaintiffs specified that Hooley would testify to the role of a general contractor in storm claims and other insured losses, why general contractors are entitled to overhead and profit, his experience in Montana with insurance companies paying for overhead and profit, and the purpose of and calculations used by the insurance companies’ estimating software. (/d. at 2-9). Plaintiffs also explained that Hooley would testify to how those issues impacted the hail damage claims of the Dranges and other clients of Big Sky Contracting. II. Analysis Rule 26(a)(2) “requires parties to disclose the identity of any expert witness.” Fed. R. Civ. Proc. 26(a)(2); Goodman v. Staples The Office Superstore,

LLC, 644 F.3d 817, 824 (9th Cir. 2011). The Federal Rules contemplate two

classes of experts: those retained or specifically employed to give expert testimony in a case, and those who are not retained or specially employed but, nevertheless,

may provide expert testimony. Tarter v. Throne Law Office, P.C., No. CV 17-123-

BLG-SPW, 2019 WL 609337, at *2 (D. Mont. Feb. 13, 2019). The disclosure of

retained experts is governed by Rule 26(a)(2)(B), which requires that the

disclosure include a detailed, written expert report. Non-retained experts are

governed by Rule 26(a)(2)(C), which does not require a detailed report. Instead, the party offering a non-retained expert’s testimony must disclose: (1) the subject matter on which the witness is expected to present evidence under Federal Rule of

Evidence 702, 703, or 705; and (2) a summary of the facts and opinions to which

the witness is expected to testify. “The distinguishing characteristic between a retained expert and a non-

retained expert is the nature of the expert’s testimony.” Davies v. U.S. Env’t Prot.

Agency, CV 17-115-H-BMM-IJTJ, 2020 WL 2736576, at *2 (D. Mont. May 26, 2020). “A retained expert is ‘an expert who without prior knowledge of the facts

giving rise to [the] litigation, is recruited to provide expert opinion testimony.” Id. (quoting Downey v. Bob’s Disc. Furniture Holdings, Inc., 633 F.3d 1, 6 (1st Cir. 2011)). The retained expert’s opinion is based on information “obtained in a

manner other than being a percipient witness to the events in issue.” Tarter, 2019

WL 609337 at *4. A non-retained expert, on the other hand, was involved in the

events giving rise to the litigation, and their knowledge arises from their

involvement. Davies, 2020 WL 2736567 at *2. See also Tarter, 2019 WL 609337

at *4 (a non-retained expert’s opinion is based on information they acquired through their percipient observations). The line between a retained and non-retained expert “while perhaps clear in

the abstract, is often muddled in practice.” Am. Prop. Constr. Co. v. Sprenger Lag Found., 274 F.R.D. 1, 4 (D.D.C. 2011). Along the spectrum of the two kinds of

expert witnesses are hybrid fact/expert witness—“that is, someone whose

testimony turns in part on scientific, technical, or other specialized knowledge, but

who has a relationship to the subject matter of the action independent of the

litigation itself.” Id. Hybrid witnesses are not exempt from subsection (B)’s expert report requirement “to the extent their opinions exceed their percipient knowledge or were formed for the purposes of litigation.” Tarter, 2019 WL

609337 at *3. Courts have addressed the hybrid witness rule’s application to general contractors. E.g. Am. Prop. Constr., 274 F.R.D. at 4-5; Full Faith Church of Love

W., Inc. v. Hoover Treated Wood Prods., Inc., No. Civ.A. 01-2597-KHV, 2003

WL 169015 (D. Kan. Jan. 23, 2003). Where an expert confined their testimony to

“information they obtained, and the opinions they formed, while performing the

tasks they were hired to do in their capacity as contractors,” the courts found them

to be non-retained experts covered by the requirements of Rule 26(a)(2)(C). Am.

Prop. Constr., 274 F.R.D. at 4. “Any expert testimony exceeding those bounds

will not be admitted.” Jd. at 5. Here, the Court agrees with Defendant that much of Plaintiffs’ description of

Hooley’s testimony exceeds the bounds of what is permissible for a non-retained

expert. Specifically, Hooley’s testimony described on pages 2 through 9—7.e.

generalized testimony concerning the role of a general contractor in a storm claim

or other insured loss, the reason general contractors are entitled to overhead and

profit, the standard practice in Montana for payment of general contractor overhead and profit by insurance companies, and the calculations used by estimating software—exceeds the information he obtained and the opinion he

formed during the course of dealing with the Dranges. (See Doc. 86-1 at 2-9). In contrast, Hooley’s testimony on those issues as applied to the Dranges’ storm claim is based on his involvement in the events giving rise to this litigation and knowledge acquired therein. As such, Plaintiffs’ correctly classified the portions of Hooley’s testimony on the Dranges’ storm claim as that of a non- retained expert. To the extent that Plaintiffs use certain testimony otherwise considered to be that of a retained expert to lay foundation, the Court reserves

ruling on such objections for pretrial evidentiary motions and/or trial.

With respect to Hooley’s testimony on the specifics of other Big Sky Contracting clients who had difficulty obtaining general contractor overhead and

profit from Defendant, such testimony is outside the scope of a non-retained expert because class certification was denied. (Doc. 101). Thus, any commentary on

experiences with other clients who would have been part of the proposed class is

beyond the scope of the facts giving rise to this litigation. Because Hooley is a retained expert with respect to testimony not specific to

the Dranges’ claim and his disclosure did not comply with Rule 26(a)(2)(B), Hooley will be precluded from offering retained expert opinions. However, because Hooley was disclosed as a hybrid witness, his testimony will be allowed

only to the extent that it comports with the law on hybrid witnesses. That is, his

testimony will be limited to what he witnessed or experienced as a contractor with

the Dranges and their storm claim that is the subject of this lawsuit. II. Conclusion For the reasons set forth above, Defendant’s motion is GRANTED in part and DENIED in part. DATED this day of March, 2023. Blea 0 Lathe USAN P. WATTERS Lise United States District Judge