Finkelstein v. Prudential Financial Incorporated

• Court: District Court, D. Arizona
• Decided: October 23, 2023
• Docket: 2:21-cv-00657
• Status: Unknown

Opinion

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Sharon Finkelstein, No. CV-21-00657-PHX-MTL 10 Plaintiff, ORDER 11 v. 12 Prudential Financial Incorporated, et al., 13 Defendants. 14 15 Before the Court are both parties’ motions to strike and/or exclude or limit the 16 opinions and testimony of each other’s expert witnesses. The motions are fully briefed, and 17 the Court held oral argument on August 28, 2023. 18 I. BACKGROUND 19 Plaintiff Sharon Finkelstein (“Plaintiff”) brought this lawsuit against Defendant 20 Prudential Insurance Company of America (“Defendant”) for breach of contract and bad 21 faith arising out of an insurance claim. Plaintiff purchased a long-term care insurance 22 policy with Prudential in 1993. Under the policy, an insured may be entitled to $298 per 23 day in benefits, subject to periodic increases for inflation. 24 Plaintiff alleges that she is entitled to benefits under the policy since 2008 because 25 she has Arnold-Chiari malformation (hereinafter “Chiari malformation”),1 Meniere’s 26 1 Chiari malformations are congenital and occur when part of the cerebellum “slips into the foramen magnum at the upper cervical spine,” restricting flow of cerebral spinal fluid 27 between the spinal cord and the brain. 4 Attorneys Textbook of Medicine (Third Edition) § 11.03 (2023). At least three types of Chiari malformations exist: Chiari I, Chiari II (also 28 known as Arnold-Chiari malformation), and Chiari III. Id.; see also Chiari Malformations, Am. Ass’n. of Neurological Surgeons, https://www.aans.org/Patients/Neurosurgical- Case 2:21-cv-00657-MTL Document 328 Filed 10/23/23 Page 2 of 35

1 disease,2 and vertigo.3 (Doc. 1 at 9, 21). Plaintiff claims these conditions leave her unable 2 to perform two or more activities of daily living, as described in the policy. Defendant 3 provided Plaintiff with benefits under the policy for twelve years before her claim was 4 terminated. After an investigation, Defendant’s in-house medical director, Dr. John Nye, 5 found that she did not need substantial assistance with her activities of daily living for a 6 recent period of 90 days, so she no longer qualified for benefits under the policy. As a 7 result, Defendant terminated Plaintiff’s benefits because this meant that she did not meet 8 the eligibility definition under the policy for “chronic illness or disability,” which is now 9 at issue in this case. Plaintiff alleges that Defendant terminated her benefits without 10 reasonable investigation and in breach of the policy. Plaintiff further alleges that Defendant 11 has an “institutional scheme” to eliminate its now-discontinued long-term care insurance 12 plans. Plaintiff seeks compensatory damages that she alleges are owed under the policy, 13 punitive damages, attorneys’ fees, and costs. Plaintiff engaged several experts to help prove 14 her case. Defendants also retained its own experts to rebut Plaintiff’s case. Both parties 15 now move to exclude or limit each other’s experts’ opinions and testimony. 16 II. LEGAL STANDARD 17 A. Disclosure Requirements 18 Rule 26(a)(1), Fed. R. Civ. P., requires that parties promptly disclose the identity of 19 Conditions-and-Treatments/Chiari-Malformation (last visited Oct. 19, 2023). Symptoms 20 from Chiari malformations include headache, neck pain, dizziness, incoordination, and sensory and hearing loss. The severity of the symptoms increase based on the type of 21 malformation, with Type I being the least severe. Id. Plaintiff alleges in her Complaint that she has “Arnold-Chiari malformation.” (Doc. 1) Both Plaintiff and Defendant, however, 22 use Chiari malformation Type I and Arnold-Chiari malformation interchangeably throughout the briefing even though the literature suggests that these are two different types 23 of Chiari malformation. (See, e.g., Docs. 259 (Plaintiff using “Arnold-Chiari malformation”), 262 (Defendant using “Chiari malformation type I”), 268 (Plaintiff using 24 “Arnold Chiari malformation” and “Arnold Chiari Type I malformation”), 285 (Defendant using “Arnold Chiari malformation”), 291 at 2 (Plaintiff stating “Mrs. Finkelstein suffers 25 from Chiari Malformation Type I.”).) 2 Meniere’s disease “presents with paroxysmal symptoms of tinnitus, monaural fullness, 26 fluctuating hearing, and episodic vertigo . . . . Meniere disease is diagnosed only if there is both episodic vertigo and sensorineural hearing loss.” 11 Attorneys Textbook of Medicine 27 (Third Edition) § 84.07 (2023). 3 Throughout the briefing, the parties also refer to other conditions that Plaintiff may have, 28 such as hypertension, thyroid disease, obesity, and others, but these conditions are not why Plaintiff alleges she qualifies for long-term care insurance.

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1 lay witnesses and a copy of documents that may be used to support their claims or defenses. 2 Fed. R. Civ. P. 26(a)(1)(A). Rule 26(a)(2), Fed. R. Civ. P., requires parties to disclose the 3 identity of each expert witness, “accompanied by a written report prepared and signed by 4 the witness,” by a date set by the Court. Fed. R. Civ. P. 26(a)(2)(A)-(C). Rule 37(c)(1) 5 “gives teeth to these requirements” by forbidding the use of any improperly disclosed 6 information in a motion, at a hearing, or at trial. Yeti by Molly, Ltd. v. Deckers Outdoor 7 Corp., 259 F.3d 1101, 1106 (9th Cir. 2001); see also Fed. R. Civ. P. 37(c)(1) (“[i]f a party 8 fails to provide information or identify a witness as required by Rule 26(a) . . . the party is 9 not allowed to use that information”). Courts have excluded evidence, including witness 10 testimony, under Rule 37(c)(1) “even when a litigant’s entire cause of action or defense 11 has been precluded.” Yeti by Molly, Ltd., 259 F.3d at 1106. 12 Two exceptions “ameliorate the harshness of Rule 37(c)(1).” Id. The material may 13 be used if the party’s failure to properly disclose was “substantially justified” or 14 “harmless.” Fed. R. Civ. P. 37(c)(1). The party making the late disclosure bears the burden 15 of establishing that the failure to disclose was substantially justified or harmless. See Torres 16 v. City of Los Angeles, 548 F.3d 1197, 1213 (9th Cir. 2008) (“[T]he burden is on the party 17 facing the sanction . . . to demonstrate that the failure to comply with Rule 26(a) is 18 substantially justified or harmless.”). Rule 37(c) is intended to be a “self-executing, 19 automatic sanction to provide [] a strong inducement for disclosure of material.” Yeti by 20 Molly, Ltd., 259 F.3d at 1106 (citing Fed. R. Civ. P. 37 advisory committee’s note to 1993 21 amendment) (quotations omitted). 22 B. Daubert 23 A party offering expert testimony must establish that the testimony satisfies Rule 24 702 of the Federal Rules of Evidence. Rule 702 provides: 25 A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an 26 opinion or otherwise if: 27 (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence 28 or to determine a fact in issue;

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1 (b) the testimony is based on sufficient facts or data; 2 (c) the testimony is the product of reliable principles and methods; and 3 (d) the expert has reliably applied the principles and methods 4 to the facts of the case.. 5 6 Fed. R. Evid. 702.

7 As gatekeepers, trial judges make a preliminary assessment about the admissibility

8 of expert testimony. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589, 597 (1993).

9 Specifically, “the trial judge must ensure that any and all scientific testimony or evidence

10 admitted is not only relevant, but reliable.” Id. at 589. To meet the requirements of Rule

11 702, an expert must be qualified, his opinion must be based on sufficient facts or data and

12 is the product of reliable principles and methods, and his testimony must fit the case such

13 that the expert’s opinion is relevant. Id. at 589-95.

14 The Rule 702 inquiry is “flexible.” Id. at 594. The focus “must be solely on

15 principles and methodology, not on the conclusions that they generate.” Id. at 595. Because

16 the requirements of Rule 702 are conditions for determining whether expert testimony is

17 admissible, a party offering expert testimony must show by a preponderance of the

18 evidence that the expert’s testimony satisfies Rule 702. Fed. R. Evid. 104(a); see also Lust

19 v. Merrell Dow Pharms., Inc., 89 F.3d 594, 598 (9th Cir. 1996).

20 III. DISCUSSION

21 A. Defendant’s Motion to Strike

22 Defendant moves to strike three items from Plaintiff’s evidence, arguing that

23 Plaintiff improperly disclosed these only days prior to the close of fact discovery: (1) Laura

24 Parker’s supplemental report, (2) lay witnesses Tom Finkelstein, Karin Finkelstein, and

25 Bill Mayes, and (3) deposition transcripts from Turley v. Prudential. (Doc. 259 at 1-3.) The

26 Court addresses each in turn.

27 1. Laura Parker’s Supplemental Report

28 Plaintiff argues that Laura Parker’s supplemental report was necessary because

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1 Defendant expanded the subject of Ms. Parker’s opinion during her deposition and because 2 Defendant failed to produce Nurse Acosta for deposition in a timely manner. (Doc. 295 at 3 10-12.) Moreover, Plaintiff believed she was obligated to supplement the report in good 4 faith under the rules, especially because her counsel stated on the record during the 5 deposition that they would do so. (Id.) Defendant contends that the late disclosure of the 6 supplemental report is neither substantially justified nor harmless because the Nurse 7 Arroyo deposition was taken in February 2023 whereas Laura Parker’s deposition was in 8 March 2023, and Plaintiff did not provide the supplemental report until May 9, 2023. (Doc. 9 259 at 10.) 10 The Court finds that Plaintiff’s disclosure of Ms. Parker’s supplemental report was 11 substantially justified. Plaintiff submitted the report before the close of discovery, and only 12 supplemented the report because Defendant questioned Ms. Parker for over seven hours 13 and introduced Nurse Arroyo’s deposition as an exhibit during the deposition. (Doc. 295- 14 6 at 1, 3.) Thus, Defendant’s questioning expanded Ms. Parker’s conclusions and Plaintiff 15 was required under Rule 26(e)(2) to supplement them. The Court also credits Plaintiff’s 16 argument that she had an unusually difficult time scheduling Nurse Arroyo’s deposition 17 because Defendant did not produce Nurse Arroyo for deposition. Had Defendant facilitated 18 Plaintiff’s deposition of Nurse Arroyo in a timely manner, the deposition may have been 19 available before Ms. Parker’s original expert report was prepared and submitted. Moreover, 20 that Defendant deposed Ms. Parker in such a manner that caused an expansion of her 21 opinions, including about Nurse Arroyo’s competing opinion, weighs in favor of allowing 22 the supplemental report. (See Doc. 23 at 3-4¶ 4(g) (“The Court notes, however, that it may 23 permit parties to present opinions of their experts that were elicited by opposing counsel 24 during depositions of the experts. Counsel should depose experts with this fact in mind.”).) 25 2. Lay Witnesses 26 Defendant asks the Court to preclude Plaintiff from calling Tom and Karin 27 Finkelstein and Bill Mayes to testify at trial because Plaintiff did not disclose them as 28 witnesses until one day before the close of discovery. As stated on the record at oral

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1 argument, the Court will allow Tom and Karin Finkelstein and Bill Mayes to testify and 2 will allow Defendant to depose these witnesses, should this case proceed to trial. (See Doc. 3 321.) Defendant may raise this issue at the trial-setting conference, if necessary. 4 3. Turley Depositions 5 Defendant seeks to preclude Plaintiff from using deposition transcripts taken during 6 the pendency of Turley v. Prudential, a similar breach of contract case against Defendant 7 in California, arguing that Plaintiff improperly disclosed them just one day before the close 8 of fact discovery. Plaintiff argues that its late disclosure of these documents is substantially 9 justified and harmless because Plaintiff originally requested these documents from 10 Defendant during discovery, but Defendant refused to produce them. Plaintiff only 11 disclosed these documents in support of her case after she received them from a third party. 12 Because Defendant was a party to these depositions, Plaintiff contends that there is no harm 13 to Defendant by their disclosure in this case. Plaintiff also argues that any motion to strike 14 these deposition transcripts is premature, and Defendant should assert its objections as to 15 their admissibility as this case gets closer to trial. 16 The Court agrees with Plaintiff and will deny Defendant’s motion as to the Turley 17 depositions. The deponents in the disclosed depositions are Defendant’s corporate 18 representatives that sat for a 30(b)(6) deposition in another case. Thus, Defendant has 19 independent knowledge of these depositions and their disclosure late in discovery is 20 harmless. Should Defendant seek to argue that these documents are irrelevant or 21 inadmissible at trial, Defendant is free to re-assert those arguments in a motion in limine 22 or when Plaintiff seeks to introduce them at trial. 23 Accordingly, the Court denies Defendant’s Motion to Strike (Doc. 259) in all 24 respects. 25 B. Daubert Motions 26 Both parties have moved to exclude one another’s experts. Plaintiff moves to 27 exclude or limit the opinions of Defendant’s experts: Drs. Lorne Label and Abraham Jacob. 28 Defendant opposes each motion. Defendant, in turn, moves to exclude or limit the opinions

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1 of Plaintiff’s experts: Drs. Michael D. Freeman, Mark Reiser, Dan Heffez, Kamran 2 Samakar, and Constantine Moschonas, and Elliott Flood and Laura Parker. Like Defendant, 3 Plaintiff opposes each motion. 4 1. Dr. Lorne Label 5 Defendant retained Dr. Lorne Label, a neurologist, to rebut the conclusions of many 6 of Plaintiff’s experts and offer opinions on various topics related to the case. Plaintiff seeks 7 to preclude Dr. Label’s opinion and testimony on: (1) Meniere’s disease; (2) Chiari 8 malformation; (3) somatization disorders; (4) life expectancy and co-morbidity; (5) the 9 qualifications of a general surgeon; and (6) long-term care insurance policy interpretations. 10 (Docs. 266, 267, 268, 269.) The Court will first address Plaintiff’s motion to exclude 11 testimony related to Meniere’s Disease, Chiari malformation, and somatization disorders, 12 and then will address the remainder of the motions separately. 13 a. Meniere’s Disease 14 Plaintiff does not contest that Dr. Label is knowledgeable and an expert in his field 15 of neurology. Instead, Plaintiff claims that Dr. Label is unqualified to opine on Meniere’s 16 disease. (Doc. 266 at 2.) Plaintiff also argues that Dr. Label’s testimony about Meniere’s 17 disease would be cumulative if Dr. Jacob also opines on the same issue, and as such, should 18 be excluded. (Id.) 19 Courts typically do not require that an expert be a specialist, but instead require that 20 the expert “be of a certain profession, such as a doctor.” Doe v. Cutter Biological, Inc., 971 21 F.2d 375, 385 (9th Cir. 1992). Further, lack of specialized knowledge impacts the weight 22 of the expert’s testimony, not the admissibility of the testimony. United States v. Garcia, 23 7 F.3d 885, 890 (9th Cir. 1993); see also In re Silicone Gel Breast Implants Prods. Liab. 24 Litig., 318 F. Supp. 2d 879, 899 (C.D. Cal. 2004) (“A court abuses its discretion when it 25 excludes expert testimony solely on the ground that the witness’s qualifications are not 26 sufficiently specific if the witness is generally qualified. A lack of specialization affects 27 the weight of the expert’s testimony, not its admissibility.” (internal citations omitted)). 28 Dr. Label meets the requirement to opine as a medical expert and to discuss his

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1 experience with Meniere’s disease. In his practice as a neurologist, Dr. Label has treated 2 hundreds of patients with Meniere’s disease. (Doc. 285-1 at 8.) Plaintiff, however, claims 3 that Dr. Label stated in his deposition that he is not an expert in Meniere’s disease. (Doc. 4 266 at 1-2.) The Court finds that Plaintiff mischaracterizes Dr. Label’s testimony. Dr. Label 5 said he is not an expert in Meniere’s disease in the context that he is not a neurosurgeon 6 and does not specialize in that disease. (Doc. 266-1 at 6.) Dr. Label further clarifies that he 7 can care for and treat patients with Meniere’s disease. (Id.) Plaintiff’s arguments ultimately 8 go to the weight of the evidence, not its admissibility. See Abarca v. Franklin Cnty. Water 9 Dist., 761 F. Supp. 2d 1007, 1028 (E.D. Cal. 2011) (“Gaps in an expert witness’s 10 qualifications or knowledge generally go to the weight of the witness’s testimony, not its 11 admissibility” (quoting Robinson v. GEICO Gen. Ins. Co., 477 F.3d 1096, 1100 (8th Cir. 12 2006)). 13 If Dr. Jacob testifies about Meniere’s disease, however, Dr. Label will be precluded 14 from also doing so. (See Doc. 23 at 4 ¶ 4(h) (stating that “[e]ach side shall be limited to 15 one retained or specifically employed expert witness per issue”).) Dr. Label testifies that 16 he would “defer” to Dr. Jacob about Plaintiff’s Meniere’s disease diagnosis because Dr. 17 Jacob performs surgery on patients with Meniere’s disease. (Docs. 266 at 2, 266-1 at 6.) 18 This is an issue for motions in limine and not appropriate at this stage. The Court therefore 19 denies Plaintiff’s motion to exclude Dr. Label with respect to Meniere’s disease (Doc. 266 20 at 1- 2). 21 b. Chiari Malformation 22 Plaintiff similarly argues that Dr. Label claims he is not an expert in Chiari 23 malformations. (Doc. 266 at 3.) Defendant argues that Dr. Label is an expert with relevant 24 experience with Chiari malformations. (Doc. 285 at 2-3.) 25 As discussed, Dr. Label need not be a specialist to qualify an expert. See Doe, 971 26 F.2d at 385. Defendants established that Dr. Label is knowledgeable and an expert in his 27 field. In addition, Dr. Label has reviewed hundreds of MRIs with Chiari malformations. 28 (Doc. 285-1 at 11.) Plaintiff claims that Dr. Label said he is not an expert in Chiari

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1 malformations. (Doc. 266 at 1-4.). But Dr. Label said he is not an expert in Chiari 2 malformations in the context that he is not a neurosurgeon and does not specialize in that 3 disease. (Doc. 266-1 at 1, 3-4.) Dr. Label explains that he has had patients with Chiari 4 malformations and referred many of them to neurosurgeons for treatment. (Doc. 285-1 at 5 11.) Therefore, as a neurologist, Dr. Label may opine on Chiari malformations, subject to 6 the proper foundation and any cross-examination or impeachment at trial. Defendant can 7 address its concerns with the weight of the testimony through cross-examination. See 8 Daubert, 509 U.S. at 596. The Court therefore denies Plaintiff’s motion to exclude Dr. 9 Label with respect to Chiari malformation (Doc. 266 at 2-4). 10 c. Somatization Disorders 11 Plaintiff argues that Dr. Label is not an expert in somatization disorder because he 12 admitted that he is not, and he has not published about or researched this condition. (Doc. 13 266 at 4.) Plaintiff also argues that the Court should prohibit Dr. Label from testifying 14 about somatization disorders under Rule 403 because it will confuse and mislead the jury. 15 (Id. at 5.) Defendant claims that Dr. Label is an expert because he has treated and diagnosed 16 patients with somatization disorder. (Doc. 285 at 3.) 17 Dr. Label has diagnosed hundreds of patients with somatization disorder. (Doc. 285- 18 1 at 10.) The Court, however, cannot find a basis in the record for Dr. Label’s opinions 19 related to whether Plaintiff has somatization disorder. Dr. Label has not examined Plaintiff 20 for this disorder, nor has another physician diagnosed her with this condition. As such, the 21 Court agrees that Dr. Label’s testimony would mislead a jury and that this evidence should 22 be excluded. See Daubert, 509 U.S. at 595 (“Throughout, a judge assessing a proffer of 23 expert scientific testimony under Rule 702 should also be mindful of other applicable 24 rules.”); Fed. R. Evid. 403 (“The court may exclude relevant evidence if its probative value 25 is substantially outweighed by a danger of one or more of the following: unfair prejudice, 26 confusing the issues, misleading the jury, undue delay, wasting time, or needlessly 27 presenting cumulative evidence.”). The Court therefore grants Plaintiff’s motion to exclude 28 Dr. Label’s testimony with respect to somatization disorders (Doc. 266 at 4-5).

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1 2. Dr. Abraham Jacob 2 Defendant also retained Dr. Abraham Jacob, a neurotologist with a subspecialty in 3 otolaryngology, to rebut the conclusions of many of Plaintiff’s experts and offer opinions 4 on various topics related to the case. Plaintiff seeks to preclude Dr. Jacob’s opinion and 5 testimony on: (1) life expectancy and co-morbidity; (2) the standard qualifications of a 6 general surgeon; (3) long-term care insurance policy interpretations; and (4) Chiari 7 malformations and “any topics outside the bounds of his expertise on Meniere’s disease.” 8 (Docs. 267, 268, 269, 270.) The Court will address Dr. Jacob’s opinions on Chiari 9 malformations and “any topics outside the bounds of his expertise on Meniere’s disease” 10 first, (see Doc. 270 at 1), and then, will address the remainder of the motions separately 11 with reference to Dr. Label below. 12 Plaintiff argues that Dr. Jacob does not have experience treating Chiari 13 malformations. (Id. at 2.) Plaintiff also argues his report is unreliable and 14 incomprehensible, making it difficult to differentiate between Dr. Jacob’s opinions and 15 others’ opinions. (Id. at 1-5.) Defendant contends that Dr. Jacob is qualified to testify 16 because he is a neurotologist and is not required to be a specialist. (Doc. 286 at 3- 4.) 17 Defendant maintains that Dr. Jacob’s report is well-organized with headings and 18 subheadings differentiating between Dr. Jacob’s opinion from others. (Id. at 2-3.) 19 Plaintiff bases her complaints about Dr. Jacob’s specialized expertise in Chiari 20 malformations on cases outside the Ninth Circuit that require physicians to be a specialist 21 in performing the medical care at issue. (Dofc. 270 at 8.) For example, Plaintiff cites 22 Tanner v. Westbrook, 174 F.3d 542, 528 (5th Cir. 1999), which held the testimony 23 unreliable when the physician “did not have the kind of specialized knowledge required to 24 testify” regarding an issue in a case. (Doc. 270 at 8.) Plaintiff also cites Kallassy v. Cirrus 25 Design Corp., No. Civ.A. 3:04-CV-0727N, 2006 WL 1489248, at *7 (N.D. Tex. 2006), 26 which held that an orthopedic surgeon did not qualify as an expert to determine the cause 27 of Plaintiff’s nervous system disorder. (Id.) These examples, however, do not apply here. 28 As discussed, courts in this Circuit do not require that an expert be a specialist, but instead

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1 require that the “expert be of a certain profession.” Doe, 971 F.2d at 385. Further, lack of 2 specialized knowledge impacts the weight of the expert’s testimony, not the admissibility 3 of the testimony. Garcia, 7 F.3d at 890; BBK Tobacco & Foods LLP v. Cent. Coast Agric. 4 Inc., 615 F. Supp. 3d 982, 1005-06 (D. Ariz. 2022). 5 Defendants established that Dr. Jacob is knowledgeable and experienced in his field 6 of neurotology. Dr. Jacob is board certified in both otolaryngology and neurotology 7 cranial-based surgery, and currently serves as the medical director of otology, neurotology, 8 and audiology for Tucson Medical Center. (Doc. 267-7 at 2; Doc. 270-1 at 1; Doc. 286-1 9 at 6.) In addition, Dr. Jacob has reviewed imaging for patients with Chiari malformation. 10 (Doc. 286-1 at 9.) Thus, Dr. Jacob may offer opinions about Plaintiff’s medical conditions 11 based on that medical experience and knowledge. See, e.g., Doe, 971 F.2d at 385 12 (concluding that “[t]he fact that the [virologist and infectious disease specialists] were not 13 licensed hematologists does not mean that they were testifying beyond their area of 14 expertise”); Fowler v. Wal-Mart Stores, Inc., No. 2:16-CV-450-JCM-GWF, 2017 WL 15 8682353, at *3 (D. Nev. Nov. 14, 2017) (holding that a neurologist “need not be an expert 16 specifically in orthopedic surgery in order to be of assistance to a jury as to the medical 17 issues presented”). 18 Moreover, Dr. Jacob’s report does not appear incomprehensible and unreliable. 19 Dr. Jacob’s opinions are labeled throughout the 40-page report. (See Doc. 270-1.) In the 20 records review section, Dr. Jacob labels his own opinion in capital letters and bold text 21 with the word “OPINION.” (Id. at 16-29.) With each expert he reviews, Dr. Jacob 22 identifies his opinion with the statement “I reviewed the transcript and exhibits in their 23 entirety and have the following comments and opinions.” (Id. at 29-41.) Plaintiff’s 24 arguments ultimately go to the weight of the opinions, not its admissibility. See Daubert, 25 509 U.S. at 596. As such, Plaintiff may test the limitations of Dr. Jacob’s opinions and 26 attempt to discredit them at trial. See id. To the extent that Plaintiff argues Dr. Jacob 27 provided new opinions during deposition, Plaintiff elicited that testimony so the Court will 28 not exclude it merely because it is not in Dr. Jacob’s report. (See Doc. 23 at 3-4 ¶ 4(g).)

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1 The Court therefore denies Plaintiff’s motion to exclude Dr. Jacob’s testimony with 2 respect to Chiari malformations and “any topics outside the bounds of his expertise on 3 Meniere’s disease” (Doc. 270). 4 3. Life Expectancy and Co-Morbidity 5 Plaintiff retained Dr. Michael D. Freeman, a forensic medicine and forensic 6 epidemiology expert, to opine about Plaintiff’s life expectancy. Defendant offers Drs. 7 Label and Jacob to rebut Dr. Freeman’s testimony. Plaintiff argues that neither Dr. Label 8 nor Dr. Jacob should opine as to Plaintiff’s life expectancy or co-morbidities under Rule 9 702 because neither are qualified to discuss these issues. (Doc. 267.) Plaintiff claims that 10 Drs. Label and Jacob are not experts in forensic medicine or epidemiology, and as such, 11 have improperly offered opinions criticizing Dr. Freeman’s opinions. (Doc. 267 at 1, 5-6.) 12 Plaintiff also argues that, even if both physicians are qualified, both cannot testify because 13 the Scheduling Order limits each party to only one independent expert per issue. (Doc. 267 14 at 6.) Defendant argues that these experts may properly criticize Dr. Freeman’s opinions 15 by showing that he failed to account for certain risk factors. (Doc. 287 at 1-2.) Defendant 16 also argues that Plaintiff’s concerns address the weight of the testimony, not admissibility. 17 (Id. at 4.) Finally, Defendant contends that Plaintiff’s cumulative testimony argument is 18 premature. (Id.) 19 Under Rule 26(a)(2)(D)(ii), Fed. R. Civ. P., parties may offer testimony “intended 20 solely to contradict or rebut evidence on the same subject matter identified by another 21 party.” Id. A rebuttal expert critiques methodologies and opinion of the other party’s expert 22 to identify flaws in that expert’s opinion. Aviva Sports, Inc. v. Fingerhut Direct Mktg., Inc., 23 829 F. Supp. 2d 802, 834-35 (D. Minn. 2011). As such, a rebuttal expert’s report and 24 testimony “are subject to exclusion if they are not proper rebuttal.” People v. Kinder 25 Morgan Energy Partners, L.P., 159 F. Supp. 3d 1182, 1191 (S.D. Cal. 2016). 26 Here, as explained later in Part III.B.6 of this Order, Dr. Freeman is excluded as an 27 expert because his report is unreliable. Therefore, the need for Drs. Label’s and Jacob’s 28 rebuttal of Dr. Freeman’s life expectancy and co-morbidity testimony no longer exists. The

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1 Court therefore grants Plaintiff’s motion to exclude life expectancy and co-morbidity 2 testimony (Doc. 267). 3 4. General Surgeon Qualifications 4 Plaintiff retained Dr. Kamran Samakar, a general surgeon, to rebut Dr. John David 5 Nye, a general surgeon retained by Defendant. Defendant attempts to use Drs. Label and 6 Jacob to rebut Dr. Samakar’s testimony. Plaintiff seeks to exclude Dr. Label and Dr. Jacob 7 from opining about the general qualifications of a surgeon under Rule 702. (Doc. 268.) 8 Plaintiff claims that Dr. Label, a neurologist, and Dr. Jacob, an otolaryngologist, are not 9 qualified to counter Dr. Samakar’s opinions about Dr. Nye’s testimony because they lack 10 the training and knowledge of general surgeons’ standards of care. (Id.) Defendant argues 11 that Drs. Label and Jacob are qualified to offer opinions about the general capabilities of 12 other doctors. (Doc. 284 at 2.) Specifically, Drs. Label and Jacob do not opine about 13 general surgery, but instead about the qualifications of all physicians to review and 14 understand a patient’s medical records, evaluate a patient’s physical functioning, and 15 research medical conditions. (Id. at 2-3.) 16 The Court agrees that Drs. Label and Jacob, as physicians, are qualified to opine 17 about the medical field and the qualifications of another physician. See Doe, 971 F.2d at 18 385. Drs. Label and Jacob, however, are not qualified to opine about Dr. Samakar’s 19 opinions as to Dr. Nye’s qualifications because they did not review any of Dr. Nye’s 20 testimony. To critique Dr. Samakar’s opinion, Drs. Label and Jacob must also be familiar 21 with Dr. Nye’s testimony. See Fed. R. Evid. 702 (“the testimony is based on sufficient facts 22 or data”). In Drs. Label’s and Jacob’s deposition, they both admit to (1) not having any 23 knowledge about Dr. Nye’s particular qualifications, (2) not reading Dr. Nye’s deposition, 24 and (3) not knowing the standards of general surgeons. (Doc. 268-2 at 4-8; Doc. 268-4 at 25 3-7.) The Court therefore grants Plaintiff’s motion to exclude testimony on standards of a 26 general surgeon (Doc. 268). 27 5. Insurance Policy Interpretations 28 Plaintiff seeks to exclude Drs. Label and Jacob from opining about what the

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1 insurance policy requires. (Doc. 269.) Plaintiff argues that, because interpretation of the 2 insurance policy is the crux of whether Plaintiff qualifies for the long-term care insurance, 3 Drs. Label and Jacob as non-insurance policy experts should not opine on this legal issue. 4 (Doc. 269 at 1-2.) Defendant claims that Drs. Label and Jacob will not offer legal opinions 5 about insurance policies, but instead, offer testimony about whether Plaintiff can perform 6 activities of daily living (“ADLs”). (Doc 283.) 7 Expert witnesses cannot give opinions about their legal conclusions because 8 “instructing the jury as to the applicable law is the distinct and exclusive province of the 9 court.” Nationwide Transp. Fin. v. Cass Info. Sys. Inc., 523 F.3d 1051, 1058 (9th Cir. 2008) 10 (quoting Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1016 (9th Cir. 11 2004)). Courts typically prohibit experts from interpreting the law and advising how the 12 law should apply to the facts of a case because this testimony can circumvent the fact- 13 finder’s decision-making capability. Pinal Creek Grp. v. Newmont Mining Corp., 352 F. 14 Supp. 2d. 1037, 1042 (D. Ariz. 2005). Insurance policy interpretation is a matter of law for 15 the Court, meaning that expert “testimony cannot be used to provide legal meaning or 16 interpret the policies as written.” McHugh v. United Servs. Auto. Ass’n., 164 F.3d 451, 454 17 (9th Cir. 1999). 18 Both physicians used the insurance policy to arrive at their conclusions. In his 19 report, Dr. Label used the insurance policy handbook to define ADLs and identify the types 20 of activities he believed fell under that definition. (Doc. 269-1 at 4, 9, 11.) In his deposition, 21 Dr. Label opines that, under the policy, Plaintiff would “require assistance with two of her 22 ADLs for at least three months in order to qualify.” (Doc. 269-2 at 7.) He also states that 23 Plaintiff does not qualify in part “because she didn’t need any assistance with any of the 24 six ADLs[,] . . . [and] there were no consistent days.” (Id. at 8-9.) 25 Dr. Jacob refers to the long-term care policy to develop a definition of “substantial 26 assistance” and explains what he thinks falls under that definition. (Doc. 269-4 at 4, 7, 35, 27 38, 40-41.) In his report, Dr. Jacob opines that “[Plaintiff’s] level of function on 28 asymptomatic or hypo-symptomatic days does not require her to have ‘substantial

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1 assistance’ whether ‘hands-on assistance’ or ‘stand-by assistance’ to perform [her ADLs].” 2 (Id. at 6-7 (emphasis in original).) Dr. Jacob further opines that “needing assistance from a 3 walker does not make her eligible for benefits under her long-term care policy. The 4 assistance needed is ‘substantial assistance’ either ‘hands-on’ or ‘stand-by,’ from a person 5 [and] not a device.” (Id. at 35.) In his deposition, Dr. Jacob further explains that “his 6 understanding is that she needs to have —needs that assistance for 90 days” and that “she 7 did not need a 90-day consecutive hands-on or standby assistance for that ADL, and, 8 therefore, she would not qualify for benefits.” (Doc. 269-5 at 5.) 9 The Court precludes Drs. Label and Jacob from offering any expert opinions that 10 interpret the Plaintiff’s insurance policy or that her health conditions do not qualify her for 11 benefits under the policy. See Maffei v. N. Ins. Co. of N.Y., 12 F.3d 892 (9th Cir. 1993) 12 (holding exclusion of insurance expert’s interpretation of “hostile fire” under the insurance 13 policy was proper because the testimony was an unsupported legal conclusion); see also 14 Chale v. Allstate Life Ins. Co., 353 F.3d 742, 749 (9th Cir. 2003) (“Although testimony 15 from medical experts can help inform the legal decision maker about the nature of these 16 afflictions, it does not dictate the proper legal interpretation of this policy term.”). 17 Drs. Label’s and Jacob’s testimony shall be limited to Plaintiff’s medical conditions and 18 how these affect her abilities, but they must omit discussion about how this affects her 19 ability to secure insurance benefits or relay their opinions using policy terms. 20 The Court therefore grants in part, as discussed herein, Plaintiff’s motion to exclude 21 this testimony on policy interpretations (Doc 269). 22 6. Dr. Michael D. Freeman 23 Plaintiff retained Dr. Michael D. Freeman, an epidemiology expert, to opine about 24 Plaintiff’s life expectancy. Defendant moves to exclude his opinions and testimony for 25 three reasons. (Doc. 260.) First, Dr. Freeman “relies on insufficient data and ignores 26 [Plaintiff’s] specific health conditions and risk factors that impact her life expectancy.” (Id. 27 at 2.) Second, Dr. Freeman based his opinion on outdated life tables from 2019. (Id.) And 28 finally, his testimony would not help a trier of fact because it simply restates verbatim the

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1 average life expectancy shown in the 2019 CDC life table. (Id.) 2 Defendant does not dispute Dr. Freeman’s qualifications as an expert, but disputes 3 the methodology used in his report. Courts find expert testimony admissible when the 4 witness employs reliable principles and methods and applies those principles and methods 5 to the facts of the case. Daubert, 509 U.S. at 589; see also Fed. R. Evid. 702. In his report, 6 Dr. Freeman opines that Plaintiff is expected to live to be 85.4 years old because she does 7 not have any co-morbidities that would affect her life expectancy outside of what an 8 average person faces. (Doc. 260-1 at 1, 3-5.) Defendant argues that Dr. Freeman’s report 9 is unreliable because he failed to address Plaintiff’s artery disease, hypertension, obesity, 10 opioid use disorder, and other risk factors that would affect her life expectancy. (Doc. 260 11 at 8-9.) Defendant also argues that Dr. Freeman materially changed his opinion from 12 “Plaintiff has no co-morbidities” to “Plaintiff has no co-morbidities that would affect her 13 life expectancy.” (Doc. 307 at 5.) Plaintiff argues that Dr. Freeman addressed in his 14 deposition how these other chronic conditions impact life expectancy. (Doc. 292 at 5-6.) 15 Plaintiff also contends that Dr. Freeman is the only expert able to opine about life 16 expectancy to the jury. (Id. at 9-10.) 17 The Court finds Dr. Freeman’s report unreliable because it fails to explain in detail 18 his methodology for including Plaintiff’s various conditions into the calculation for 19 Plaintiff’s life expectancy. See, e.g., Noon v. Carnival Corp., No. 18-23181-CIV, 2019 WL 20 5784689, at *4-*5 (S.D. Fla. Nov. 6, 2019) (excluding expert’s life expectancy calculation 21 based on government life expectancy tables when the report failed to explain how it 22 accounted for patient’s COPD and not her “tobacco abuse, hyperlipidemia, Type 2 23 diabetes, migraines, and asthma”); Rinker v. Carnival Corp., No. 09-23154-CIV, 2012 WL 24 37381, at *1-*2 (S.D. Fla. Jan. 6, 2012) (excluding expert’s life expectancy calculation that 25 concluded 62-year-old patient’s life expectancy would be equal to that of a health 62-year- 26 old woman when the report failed to explain how it accounted for her stage three colon 27 cancer diagnosis). 28 Daubert’s gatekeeping requirement “ensures the reliability and relevancy of expert

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1 testimony” by “mak[ing] certain that an expert, whether basing testimony upon 2 professional studies or personal experience, employs in the courtroom the same level of 3 intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho 4 Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999). Dr. Freeman’s report does not 5 satisfy this standard. Like the expert reports in Noon and Rinker, Dr. Freeman’s report does 6 not provide a detailed description of his methodology to explain how his calculation of 7 Plaintiff’s life expectancy differs from the average life expectancy from the 2019 CDC life 8 tables. In his report, Dr. Freeman concludes that Plaintiff’s life expectancy is 85.4 years 9 old, which is “equivalent to the national average, and is likely conservative given the lack 10 of significant comorbidities associated with decreased life expectancy” and “despite her 11 Meinere’s disease.” (Doc. 260-1 at 1.) His report identifies Meniere’s disease, Chiari 12 malformation, hearing loss, tinnitus, decreased range of motion in her cervical spine, and 13 ulnar neuropathy as “potentially relevant diagnoses, with regard to [Plaintiff’s] life 14 expectancy.” (Id. at 3). Dr. Freeman’s report, however, only explains how Meniere’s 15 disease affects her life expectancy and does not detail any others. (See id. at 1-6.) 16 Not until his deposition does Dr. Freeman provide detail about his methodology. He 17 explains that he used Plaintiff’s medical records to identify Plaintiff’s diagnosed diseases 18 and the lack of chronic conditions factored into his assessment. (Doc 292-4 at 10-11.) He 19 also explains that Plaintiff’s hypertension does not impact life expectancy because it is 20 controlled (rather than uncontrolled), which is why he excluded it from the calculation. (Id. 21 at 3-4.) In addition, Dr. Freeman opines that large proportions of the population in 22 Plaintiff’s age group already have conditions such as obesity, so he did not reduce the life 23 expectancy from that of the general tables because the general calculation accounts for this. 24 (Id.) Parties, however, under Rule 26(a)(2), Fed. R. Civ. P., may not “cure deficient expert 25 reports by supplementing them with later deposition testimony.” Ciomber v. Coop. Plus, 26 Inc., 527 F.3d 635, 642 (7th Cir. 2008); see also Goodman v. Staples The Off. Superstore, 27 LLC 644 F.3d 817, 825 (9th Cir. 2011) (“[P]ermitting treating physicians to testify in all 28 circumstances without providing expert reports would circumvent the policies underlying

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1 Rule 26(a)(2)(B)” (citing Fielden v. CSX Transp., Inc., 482 F.3d 866 (6th Cir. 2007))). 2 Even though Dr. Freeman is the only expert with the expertise to opine about life 3 expectancy, his report fails to meet to reliability standards under Daubert. 4 The Court therefore grants Defendant’s motion to exclude Dr. Freeman (Doc. 260). 5 7. Mark Reiser, PhD 6 Plaintiff engaged Dr. Mark Reiser to opine about the damages owed to Plaintiff. 7 Defendant moves to exclude Dr. Reiser’s opinions and testimony in its entirety. (Doc. 260.) 8 First, Defendant argues that Dr. Reiser’s report fails to meet the requirements of Rule 26 9 because his report does not provide a “standard formula” nor a basis for his opinions. (Doc. 10 260 at 11-12.) Second, Defendant argues that Dr. Reiser’s calculation is unreliable because 11 it is based off Dr. Freeman’s life expectancy calculation. (Id. at 13.) Finally, Defendant 12 argues that Dr. Reiser’s opinions are independently inadmissible because his alternative 13 future benefit calculations from ages 85.4 to 95 are arbitrary and speculative. (Id. at 13- 14 14.) Plaintiff responds that no prejudice exists for any Rule 26 violations because 15 Defendant failed to raise the issue sooner. (Doc. 292 at 12-13.) Plaintiff, however, agrees 16 to withdraw the projections from ages 85.4 to 90. (Id. at 13-14.). 17 The Court agrees that Dr. Reiser’s two-page report fails to provide the detail 18 required for a reliable report. Plaintiff admits that she failed to include Dr. Reiser’s 19 schedule for past-due benefits and schedule for future benefit calculations to the original 20 two-page report. As such, the late disclosure of the scheduling tables, violating Rule 26, 21 means that these tables shall be excluded. See Fed. R. Civ. P. 37(c)(1) (“[i]f a party fails to 22 provide information or identify a witness as required under Rule 26(a) . . . the party is not 23 allowed to use that information”). Even though Dr. Reiser’s report does not contain the 24 schedule tables, his report explains his calculation by identifying the different variables 25 and adjustments. (Id.) Nonetheless, because Dr. Reiser’s calculations rely on Dr. 26 Freeman’s unreliable life-expectancy calculation, the Court finds Dr. Reiser’s report also 27 unreliable. See Kumho Tire Co., 526 U.S. at 152 (stating that Daubert’s gatekeeping 28 requirement “ensure[s] the reliability and relevancy of expert testimony” by “mak[ing]

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1 certain that an expert, whether basing testimony upon professional studies or personal 2 experience, employs in the courtroom the same level of intellectual rigor that characterizes 3 the practice of an expert in the relevant field.”) 4 The Court therefore grants Defendant’s motion with respect to Dr. Reiser’s opinion 5 (Doc. 260.). 6 8. Dan Heffez, M.D. 7 Plaintiff retained Dr. Dan Heffez, an expert in neurosurgery, to rebut to Defendant’s 8 Drs. Lorne Label’s and Abraham Jacob’s conclusions and provide his own opinion about 9 the cause of Plaintiff’s medical symptoms. (Doc. 291.) Defendant seeks to exclude Dr. 10 Heffez’s opinions and testimony because (1) his report contains speculative opinions and 11 vague statements, (2) he does not follow his own prescribed methodologies, and (3) he 12 improperly discloses a new opinion about Plaintiff’s cervical stenosis. (Doc. 261.) Plaintiff 13 argues that Dr. Heffez’s expert opinions fall within the type of medical opinions routinely 14 admitted in federal court. (Doc. 291.) 15 a. Report’s Reliability 16 Defendant does not dispute that Dr. Heffez is qualified as a medical expert. Instead, 17 Defendant argues that Dr. Heffez’s report and testimony are unreliable. Specifically, 18 Defendant claims that Dr. Heffez’s opinion about Plaintiff’s Chiari malformation diagnosis 19 is speculative because he fails to rely on his own published methodology and uses “vague 20 and speculative opinions.” (Doc. 261 at 4-7.) 21 When an expert’s testimony relies heavily on the expert’s knowledge and 22 experience, rather than scientific methodology, the Daubert factors are not applicable. 23 United States v. Hankey, 203 F.3d 1160, 1169 (9th Cir. 2000). “Despite the importance of 24 evidence-based medicine, much of medical decision-making relies on judgment—a 25 process that is difficult to quantify or even to assess qualitatively.” Primiano v. Cook, 598 26 F.3d 558, 565 (9th Cir. 2010) (quoting Harrison’s Principles of Internal Medicine 3 (Dennis 27 L. Kasper et al. eds., 16th ed. 2005)). A court therefore may admit medical expert testimony 28 “if physicians would accept it as useful and reliable” and the medical knowledge provides

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1 a “reasonable opinion.” United States v. Sandoval-Mendoza, 472 F.3d 645, 655 (9th Cir. 2 2006). 3 Defendant’s argument that Dr. Heffez failed to use his own “methodology” to 4 evaluate Plaintiff is misguided. Dr. Heffez previously conducted a peer-reviewed study 5 where he talked to and physically examined the patients, in addition to reviewing their 6 medical records. (Doc. 291-3 at 6-7.) Dr. Heffez is not required to replicate this 7 methodology. Medical experts may rely on their own clinical expertise to draw conclusions 8 after reviewing a patient’s medical records. See McClellan v. I-Flow Corp., 710 F.Supp. 9 2d 1092, 1137-38 (D. Or. 2010). Dr. Heffez report explains that he reviewed Plaintiff’s 10 medical records, Drs. Label’s and Jacob’s reports, and identified a number of other expert 11 reports, declarations, and depositions before drafting his report. (Doc. 261-1 at 2.) He states 12 that he formulated his opinions using his “education, training, and experience as a board- 13 certified neurological surgeon with specific expertise with Chiari [m]alformations.” (Id.) 14 Using his experience and knowledge as a physician, Dr. Heffez provides detailed 15 explanations in the report and during the deposition for his findings. For example, he opines 16 that the MRI imaging of the “axial view through the plane of the foramen magnum” shows 17 brain stem compression and “[b]ased on the brain stem compression evident on her MRI 18 imaging studies, [Plaintiff’s] Chiari malformation” can explain her symptoms. (Id. at 2, 5.) 19 In the deposition, Dr. Heffez states again that “[t]he only images that can show [brain stem 20 compression] are the axial images through the plan of the foramen magum, both T1 and 21 T2.” (Doc. 291-3 at 2.) The Court therefore finds Dr. Heffez’s opinion reliable. 22 b. Cervical Stenosis 23 Defendant claims that Dr. Heffez offers a new opinion, rather than a rebuttal 24 opinion, that Plaintiff has cervical stenosis. (Doc. 261 at 7-8.) Defendant also argues that 25 this new opinion is an untimely disclosure, violating the initial expert disclosure deadline 26 of November 18, 2022. (Id.) 27 Defendant misconstrues Dr. Heffez’s explanation for providing the cervical stenosis 28 opinion. Dr. Heffez’s report is a rebuttal to Drs. Label and Jacob. Dr. Label’s report from

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1 December 21, 2022, which states, “Based on my review of the materials provided, 2 [Plaintiff] shows symptoms of . . . [d]egenerative cervical spine disease with foraminal 3 stenosis without myelopathy” that does not require the need for assistance with ADLs. 4 (Doc. 291-5 at 7-8.) Dr. Heffez’s rebuttal report from February 22, 2023, provides a 5 contrary opinion that Plaintiff “has cervical stenosis, which can contribute to vertigo and 6 balance disturbances in conjunction with the Chiarai Malformation,” which together the 7 “impact [to the Plaintiff] can be additive.” (Doc. 261-1 at 5.) Dr. Heffez states that his 8 opinion regarding cervical stenosis his own opinion but that it “is completely contrary to 9 [Drs. Label and Jacob].” (Id.) In addition, Defendant had an opportunity to respond to 10 Dr. Heffez’s opinion. Dr. Label testifies that he read Dr. Heffez’s report and could have 11 replied to Dr. Heffez’s cervical stenosis conclusion then but did not do so. (Doc. 291-2 at 12 4, 6-10.) The Court finds that because Dr. Heffez’s opinion rebuts Dr. Label’s opinion, it 13 is not an untimely expert disclosure. 14 The Court therefore denies Defendant’s motion to exclude Dr. Heffez (Doc. 261). 15 9. Dr. Constantine Moschonas 16 Plaintiff disclosed Dr. Constantine Moschonas, her treating neurologist, as a non- 17 retained expert witness. Defendant seeks to exclude the opinions and testimony of Dr. 18 Moschonas. (Doc. 262.) At the time of the declaration, Dr. Moschonas had been treating 19 Plaintiff with respect to her Meniere’s disease for almost fourteen years. (Doc. 262-1 at 3.) 20 Defendant does not contest that Dr. Moschonas is a qualified expert. Instead, Defendant 21 argues Dr. Moschonas’ opinions about (1) Plaintiff’s ability to perform ADLs, (2) the 22 Plaintiff’s treatment, and (3) Plaintiff’s Chiari malformation exacerbating the effects of her 23 other health conditions are speculative, unsupported, and contradicted by his own medical 24 records and deposition testimony. (Doc. 262 at 4, 5, 7.) 25 a. Performing ADLs 26 Defendant argues that Dr. Moschonas’ opinion that Plaintiff’s fear prevents her 27 from performing her ADLs is speculative and contradicted by evidence. (Id. at 4-5.) 28 Defendant claims that these conclusions are speculative because (1) Dr. Moschonas’

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1 treatment records do not discuss Plaintiff’s fear of falling, and (2) a video surveillance 2 shows that Plaintiff can lift cases of soda without holding onto her walker. (Id. at 5.) 3 Plaintiff argues that Defendant mischaracterizes Dr. Moschonas’ testimony about 4 Plaintiff’s fear of falling. (Doc. 293 at 5.) 5 “Despite the importance of evidence-based medicine, much of decision-making 6 relies on judgment—a process that is difficult to quantify or even assess qualitatively.” 7 Primiano, 598 F.3d at 565 (quoting Harrison’s Principles of Internal Medicine 3 (Dennis 8 L. Kasper et al. eds., 16th ed. 2005)). Physicians are expected to use their knowledge and 9 experience to evaluate a patient’s symptoms along with uncertainties inherent in medicine 10 to “make a sound judgment.” Id. Therefore, medical expert testimony should be admitted 11 if other physicians would find it “useful and reliable but it need not be conclusive because 12 medical knowledge is often uncertain.” Id. at 566 (quoting Sandoval-Mendoza, 472 F.3d 13 at 655). When the foundation is sufficient, a jury, rather than a judge, decides the expert’s 14 credibility. Id. at 566. 15 Dr. Moschonas clearly opines in his declaration and deposition that Plaintiff needs 16 substantial assistance with ADLs when she experiences vertigo. (Doc. 262-1 at 2-3; Doc. 17 293-1 at 2-3.) In his declaration, he also states that Plaintiff “does need hands-on assistance 18 with bathing and dressing, and she needs stand-by assistance (which will become hands- 19 on assistance depending on her symptoms that day) with continence, toileting, and 20 transferring.” (Doc. 262-1 at 3.) Dr. Moschonas supports these conclusions. He bases his 21 conclusions on his personal observations from treating Plaintiff and experience treating 22 other patients with Meniere’s disease. (Id. at 1, 3.) Dr. Moschonas opines that these patients 23 struggle with ADLs because of either a conscious or subconscious fear of falling. 24 (Doc. 293-1 at 4.) He explains that on asymptomatic days that Plaintiff can “mechanically” 25 dress herself but that “cognitively” she may struggle because “her brain won’t allow her 26 to” as she may be afraid to fall. (Doc. 262-2 at 12-13.) He relied on his experience as a 27 neurologist to reach this conclusion. (Doc. 293-1 at 4.) 28 Altogether, Dr. Moschonas’ declaration and deposition testimony are reliable and

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1 relevant because he relies on his professional experience and treatment of Plaintiff to 2 determine her ability to perform ADLs. See, e.g., McClellan, 710 F. Supp. 2d at 1138 3 (holding physician may draw inferences regarding causes of a condition “such as patient 4 age and surgical error from the medical literature and his extensive experience”). A court’s 5 gatekeeping function under Daubert is to ensure the reliability and relevance of expert 6 testimony, “whether basing testimony upon professional studies or personal experience.” 7 Kumho Tire Co., 526 U.S. at 152. 8 Defendant’s argument about the video surveillance ultimately challenges the 9 credibility of Dr. Moschonas conclusions, rather than the reliability of his expertise. See 10 Messick v. Novartis Pharmaceutical Corp., 747 F.3d 1193, 1199 (9th Cir. 2014) 11 (“Remaining issues regarding the correctness of [an expert’s] opinion, as opposed to its 12 relevancy and reliability, are a matter of weight, not admissibility.”). “Shaky but admissible 13 evidence is to be attacked by cross examination, contrary evidence, and attention to the 14 burden of proof, not exclusion.” Primiano, 598 F.3d at 564. 15 b. Treatment 16 Defendant argues that Dr. Moschonas “provides the baseless opinion that Plaintiff’s 17 ‘chronic dizziness and vertigo’ are ‘incurable’ symptoms.” (Doc. 262 at 5.) Defendant 18 contends that Dr. Moschonas’ opinion is contradicted by medical records and Plaintiff’s 19 own expert, neurologist Dr. Heffez, that a treatment to cure Plaintiff’s disorders exists. (Id.) 20 Defendant uses Dr. Moschonas statement that “we try noninvasive things to help people to 21 cure and stay stable” to claim that his testimony is contradictory, false, and misleading. 22 (Doc. 262 at 6 (emphasis added).) 23 As discussed, physicians are expected to use their knowledge and experience to 24 evaluate a patient’s symptoms and conditions to reach their conclusions. Primiano, 598 25 F.3d at 565. Dr. Moschonas states that since 2008, Plaintiff’s conditions are only able to 26 be managed, because “they are incurable.” (Doc. 262-1 at 3.) In other words, for this 27 specific patient the conditions are incurable. During the deposition, Dr. Moschonas 28 explains that he prefers noninvasive treatment methodologies. (Doc. 262-2 at 7-9.)

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1 Specifically, he avoids using a middle ear neurotoxin injection because that kills the nerve 2 and explains that some treatments like surgery may cure but also make symptoms worse. 3 (Doc. 262-2 at 7-9.) Dr. Heffez does state that Plaintiff would be a good candidate for 4 surgery, but he also does not guarantee a cure. (Doc. 262-3 at 3-4.) 5 “[M]uch of medical decision-making relies on judgment.” Primiano, 598 F.3d at 6 565. Courts admit medical expert testimony if other physicians would find it “useful and 7 reliable.” Id. Dr. Moschonas’ declaration and deposition testimony are reliable and relevant 8 because he relies on his professional experience and treatment of Plaintiff’s conditions. 9 Defendant may instead critique Dr. Moschonas’ treatment of Plaintiff through “vigorous 10 cross-examination” and “presentation of contrary evidence.” See Daubert, 509 U.S. at 596. 11 c. Chiari Malformation 12 Defendant argues that Dr. Moschonas changed his opinion from Plaintiff’s Chiari 13 malformation has “no clinical significance” to Plaintiff’s Chiari malformation does impact 14 Plaintiff’s symptoms. (Doc. 262 at 7-8.) Defendant argues that Dr. Moschonas’ testimony 15 is unsupported by his medical records, claiming that Dr. Moschonas should have produced 16 a Rule 26(a)(2)(B) report because his opinions did not form during his course of treatment 17 of Plaintiff. (Id.) 18 Rule 26(a)(2), Fed. R. Civ. P., requires parties to disclose expert witnesses and, for 19 retained or specially employed experts, further disclose the expert’s written report, which 20 must conform to the requirements under Rule 26(a)(2)(B). Treating physicians, unlike 21 retained medical experts, are not bound by the written expert report requirements under 22 Rule 26(a)(2)(B), but only if their testimony is limited to the opinions formed during 23 treatment of their patient. Goodman, 644 F.3d at 826. 24 Dr. Moschonas’ declaration states that Plaintiff’s symptoms of “vertigo, dizziness, 25 loss of balance, nausea, and vomiting” are “likely roughly double of what a typical 26 Meniere’s-only patient would experience” because she also has Chiari malformation. (Doc 27 262-1 at 3.) Dr. Moschonas documented that Plaintiff’s Chiari malformation was 28 “clinically insignificant” in 2008, when she first became his patient. (See Doc. 293-1 at 9.)

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1 During his deposition, Dr. Moschonas explains that in 2008, after Plaintiff had surgery, her 2 Chiari malformation symptoms were “clinically insignificant” because she was 3 asymptomatic at that time. (Id. at 14-15.) Defendant claims that Dr. Moschonas offers new 4 opinions for the purpose of litigation. (Doc. 262 at 8.) However, in the deposition after 5 reading aloud one of his treatment notes, Dr. Moschonas further explains that when 6 Plaintiff experiences symptoms from Chiari malformation these can impact her Meiner’s 7 disease-related symptoms. (Id. at 7-9, 14-16.) 8 Dr. Moschonas took what he personally observed during Plaintiff’s course of 9 treatment and drew on his knowledge and experience as a neurologist to reach his 10 conclusion that Plaintiff’s health is also impacted by her Chiari malformation. See, e.g., 11 Alsadi v. Intel Corp., No. CV-16-03738-PHX-DGC, 2019 WL 4849482 (D. Ariz. Sept. 30, 12 2019) (permitting a treating physician to only opinions he formed during his course of the 13 patient’s treatment and not to outside scientific conclusions about what caused Plaintiff’s 14 injuries). Defendant may test the sufficiency of these opinions and attempt to discredit them 15 at trial using its own evidence and expert witnesses. See Daubert, 509 U.S. at 596. 16 Plaintiff also objects to Defense Counsel Raina Shipman’s declaration in support of 17 Defendant’s Motion to Exclude Dr. Moschonas’ opinions as inadmissible. (Doc. 293 at 10- 18 12.) Plaintiff argues Ms. Shipman does not have personal medical knowledge or experience 19 to interpret the medical records and reach conclusions. (Id.) An attorney may submit a 20 declaration as evidence to support a motion but it “must be made upon personal knowledge 21 and sets forth fact[s] that would [be] admissible in evidence if the attorney were testifying 22 at trial.” Clark v. Cnty. of Tulare, 755 F.Supp. 2d 1075, 1083 (E.D. Cal. 2010). Ms. 23 Shipman declares that “nothing in these treatment records indicat[e] that Plaintiff is unable 24 to perform any ADLs due to a ‘fear’ of falling.” (Doc 265-5 at 2.) Given that Ms. Shipman 25 is neither a physician nor does not have any medical experience, the Court agrees that Ms. 26 Shipman’s declaration is inadmissible. The Court did not consider Ms. Shipman’s 27 declaration in its determination. 28 For the foregoing reasons, the Court denies Defendant’s motion to exclude Dr.

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1 Constantine Moschonas (Doc. 262). 2 10. Elliott Flood 3 Plaintiff engaged Elliott Flood to opine about Defendant’s background information 4 and financial health, its compliance with generally accepted industry customs, standards, 5 and practices, its own employees’ and expert’s testimony related to industry standards, and 6 the institutional root causes of Defendant’s alleged noncompliance with claims handling 7 industry practices. (Doc. 263.) Defendant moves to exclude Mr. Flood’s opinions for 8 offering (1) improper legal conclusions, (2) Defendant’s and its employees’ state of mind 9 conclusions, (3) irrelevant opinions, (4) Defendant’s financial incentives, financial 10 reserves, and net worth, (5) root cause analysis, and (6) claims handling practices. (Id.) 11 a. Legal Conclusions 12 Expert witnesses cannot give opinions in the form of legal conclusions. See 13 Nationwide Transp. Fin., 523 F.3d at 1058. Courts prohibit experts from interpreting the 14 law and advising how the law should apply to the facts of a case because this testimony 15 can circumvent the fact-finder’s decision-making capability. Pinal Creek Grp., 352 F. 16 Supp. 2d. at 1042. Mr. Flood offers several opinions that constitute legal conclusions: (1) 17 “Prudential lacked a good faith belief that [Plaintiff] committed fraud” (Doc. 263-1 at 20); 18 (2) “[I]t would be futile for [Plaintiff] to file a new claim” (id. at 21); and (3) Defendant 19 engaged in “a severe form of cherry picking, which is a severe form of misrepresentation 20 because it creates a false impression” (Doc. 263-2 at 17). The Court agrees that these 21 statements amount to legal conclusions. As an expert, Mr. Flood may address the factual 22 question of whether an insurer deviated from the customs, practices, and standards of the 23 insurance industry, but not the ultimate legal issue of whether Defendant breached the 24 insurance agreement or acted in bad faith. See Hangarter, 373 F.3d at 1016-17 (concluding 25 that an expert witness was permitted to testify about insurance industry standards and not 26 directly about legal conclusions was proper). 27 b. State of Mind 28 Defendant argues that Mr. Flood offers multiple opinions regarding Defendant and

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1 Defendant’s employees’ state of mind. (Doc. 263 at 5.) Plaintiff argues that the Court need 2 not rule on these statements now but instead reserve this issue for trial. (Doc. 290 at 8.) 3 Defendant identifies the following statements made by Mr. Flood either in his report 4 or deposition testimony as improper state of mind conclusions: 5 (1) “[D]eviations from industry practices for good faith claim 6 handling are institutionalized at Prudential as a company strategy to address the unprofitability of the abandoned line of 7 business” (Doc. 263-1 at 17); 8 (2) “The likelihood of future reserve increases is high. This will further add to the incentive for management at Prudential to 9 push the [Fraud, Waste, and Abuse (“FWA”)] strategy” (id. at 10 19); (3) Prudential attempted to “intimidate” Mrs. Finkelstein 11 through its [Corporate Investigation Department] investigation 12 and referral to the [Department of Insurance] (See Doc. 263-2 at 22-26); 13 (4) Prudential demonstrated “utter indifference” to the effect 14 the referral to the [Department of Insurance] could have, instead caring about its financial objectives (See id. at 29-30); 15 (5) FWA personnel “are looking at their mission is to get just 16 the biggest dollar claims they can” (id. at 32); (6) Prudential “consciously designed [the] FWA initiative to 17 focus on the biggest saving possible” (id. at 33); 18 (7)“And all the evidence points in the direction of what they care about is the bottom line. They’re indifferent to the rights 19 of the insureds” (id.); (8) Prudential “knew or should have known” the fraud referral 20 to the [Department of Insurance] was “sloppy, unsupported, 21 [and would not] go anywhere” (id. at 34); (9) The director of Prudential’s FWA program was “looking 22 for a profit center” and “looking to run this [] profitably” (id. 23 at 35); (10) Prudential is “indifferent to the normal standards for 24 fraud” and “the strategy is to make money in the line of 25 business that they abandoned in 2012” (id.); (11) “[T]he company has this very strong emphasis on profits 26 with no regard for the interest of the insured and not being 27 falsely accused of fraud” (id. at 41); (12) The director of Prudential’s FWA program is “perceiving 28 his job as what’s important about his job is how much money

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1 he saves on claims” (id. at 43); 2 (13) The director of the FWA program “understands his mission . . . is to deny as many claims as possible” (id. at 45); 3 (14) “[I]f [Prudential] had a good faith belief she was a fraud, they would not have put her on waiver [of] premium.” (id. at 4 48.). 5 (See Doc. 263 at 5-6.) 6 “Courts routinely exclude as impermissible expert testimony as to intent, motive or 7 state of mind.” McGee v. Zurich Am. Ins. Co., No. CV-17-04024-PHX-DGC, 2021 WL 8 6070590, at *8 (D. Ariz. Dec. 22, 2021) (quoting Siring v. Oregon State Bd. Of Higher 9 Edu., 927 F.Supp. 2d 1069, 1077 (D. Or. 2013)). Permitting such expert testimony about 10 state of mind “would be merely substituting the expert’s judgment for the jury’s and would 11 not be helpful.” Id. The Court agrees that these conclusions from Mr. Flood amount to 12 improper state of mind testimony that experts are precluded from opining. See, e.g., Barten 13 v. State Farm Mut. Auto. Ins. Co., No. CV-12-00399-TUC-CKJ, 2015 WL 11111309, at 14 *3 (D. Ariz. Apr. 8, 2015) (prohibiting expert from “testify[ing] as to common sense, state 15 of mind, narrative facts of which he has no personal knowledge, or credibility”). Thus, 16 these statements and similar state of mind conclusions made by Mr. Flood shall be 17 excluded.4 18 c. Irrelevant Opinions 19 Defendant argues that Mr. Flood’s opinion that Defendant should not have reported 20 Plaintiff’s claim to the Arizona Department of Insurance is irrelevant and should be 21 excluded. (Doc. 263 at 7.) Plaintiff argues that Defendant’s claim regarding relevance is 22 better served for a motion in limine rather than a Daubert motion. (Doc. 290 at 10.) Here, 23 Defendant’s arguments do not challenge the expertise and reliability of Mr. Flood but the 24 relevancy of this specific testimony. The Court declines to address the relevance of Mr. 25 Flood’s testimony about the Department of Insurance claim at this juncture. Defendant may 26 27 4 In her response to this motion, Plaintiff argues that Defendant’s insurance expert Ms. Mueller “made several missteps” and similar improper state of mind conclusions. 28 (Doc. 290 at 7-8.) Plaintiff did not move to exclude Ms. Muller’s testimony, so the Court will not address these claims here.

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1 assert its objection as to its relevance as this case gets closer to trial. 2 d. Financial Incentives and Reserves 3 Defendant argues that Mr. Flood’s testimony regarding financial incentives and 4 reserves is irrelevant and based on insufficient facts and data. (Doc. 263 at 11- 12.) Plaintiff 5 argues that the financial incentives and reserves are relevant because these will show that 6 the financial pressure changed how Defendant managed long-term care claims. (Doc. 290 7 at 10-11.) 8 To meet the requirements of Rule 702, an expert opinion must rely on sufficient 9 facts or data and result from the application of reliable principles and methods. The expert’s 10 opinion must fit the case such that it is relevant. Daubert, 509 U.S. at 589-95. The Court 11 agrees that Mr. Flood does not provide sufficient facts and data to support his testimony 12 about Defendant’s financial incentives and reserves. Mr. Flood opines that he reviewed the 13 performance evaluations of Stephen Dube and Geoffrey Camlin, members of Defendant’s 14 fraud, waste, and abuse team, and that it is not industry practice to offer raises or bonuses 15 to reduce claims payments. (Doc. 263-1 at 14-15.) In his report, instead of providing 16 specific examples tying raises and bonus payment to reduced claims payment, Mr. Flood 17 provides only examples of Mr. Dube and Mr. Camlin performing their jobs. (Id.) Nothing 18 in Mr. Flood’s report or testimony provides specific examples of financial incentives given 19 to Mr. Dube and Mr. Camlin, meaning that Mr. Flood’s testimony that financial incentives 20 exist is speculative. In addition, Mr. Flood opines that he does not know the actual reserve 21 for any claims because none has been produced in this case. (See Doc. 263-2 at 54; Doc. 22 78 at 2.) Thus, Mr. Flood’s testimony about Defendant providing financial incentives and 23 its financial reserves is precluded because it relies on insufficient facts and data. See Friend 24 v. Tim Mfg. Co., 422 F.Supp. 2d 1079, 1081 (D. Ariz. 2005) (“An expert’s testimony may 25 be excluded where it is based on subjective beliefs or unsupported speculation which is no 26 more than unreliable ipse dixit guesswork.”). 27 e. Net Worth 28 Defendant argues that Mr. Flood intends to offer an outdated, unauthenticated

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1 financial statement to opine on Defendant’s net worth with a “simple mathematical 2 calculation that anyone with basic knowledge of arithmetic can make.” (Doc. 263. at 16.) 3 Plaintiff claims that these are statutory financial statements that Mr. Flood will use “to 4 inform the jury what this document is, what it shows, and how it leads to [Defendant’s] 5 reported net worth.” (Doc. 290 at 17.) The Court agrees that an expert is not required to 6 opine about the net worth calculation, as “[a] jury does not need help with simple 7 mathematics as to which there is no dispute.” See United States v. Colorado City, Arizona, 8 No. 3:12-cv-8123-HRH, 2015 WL 11163601, at *1 (D. Ariz. 2015). Thus, Mr. Flood is 9 precluded from opining about the net worth of Defendant. 10 f. Root Cause Analysis 11 Defendant argues that the root cause opinion in Mr. Flood’s report should be 12 excluded because it is vague, confusing, and unhelpful. (Doc. 263 at 13.) Plaintiff claims 13 that Mr. Flood cites “The Institute of Internal Auditors” as the source for the methodology. 14 (Doc. 290 at 13.) 15 The Court finds the “root cause” opinion in Mr. Flood’s report vague and without 16 any methodology, analysis, or even a coherent reason for the “cause” of “defects in insurer 17 internal controls.” (Doc. 263-1 at 9.) Mr. Flood does footnote that “[t]he Institute of 18 Internal Auditors has a discussion of root cause analysis at IIA Practice Advisory 2320-2: 19 Root Cause Analysis.” (Id.) However, he does not explain how he applies that methodology 20 to reach his conclusion. The only “root cause” Mr. Flood identifies is “the root cause of the 21 problem is excessive focus of company strategy on termination of claims in the LTC 22 Legacy Business, impacting claims like [Plaintiff’s].” (Id. at 17.) As gatekeepers, trial 23 judges make a preliminary assessment about the admissibility of expert testimony, which 24 requires them to assess the reliability of the evidence. Daubert, 509 U.S. at 589. Given the 25 lack of explanation about how Mr. Flood reached his root cause conclusion, this evidence 26 shall be excluded. 27 g. Claims Handling Procedures and Practices 28 Defendant argues that Mr. Flood should not be permitted to discuss four exhibits

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1 attached to his expert report, specifically Exhibits 4 through 7, claiming that it cannot 2 ascertain what opinions Mr. Flood will offer based of these exhibits. (Doc. 263 at 14-15.) 3 Plaintiff claims that Mr. Flood used these exhibits to support his opinion about insurance 4 industry standards. (Id. at 14.) Plaintiff argues that these exhibits were submitted to comply 5 with Rule 23(a)(2)(B) to provide any “facts or data considered by the witness” and “any 6 exhibits that will be used to summarize or support them.” (Doc. 290 at 15.) 7 Rule 26(a)(2)(B), Fed. R. Civ. P., requires that the expert report include “facts or 8 data considered by the witness” and “any exhibits that will be used to summarize or support 9 them.” The exhibits define and outline insurance industry terms, roles, and processes. (See 10 Doc. 263-1 at 24-98.) Mr. Flood includes these to provide a “basic understanding of the 11 insurance business.” (Id. at 6-7.) These exhibits support Mr. Flood’s testimony about 12 insurance claims handing and industry practices. Exhibit 4 gives a brief overview defining 13 key terms and flow charts and diagrams that Mr. Flood may use during his testimony. (Id. 14 at 24-34.) Exhibit 5 provides peer-reviewed excerpts from a textbook that summarizes 15 claims handling customs, practices, and standards. (Id.at 36-63.) With Exhibit 6, Mr. Flood 16 identifies examples of good faith use of independent medical examinations from a 17 textbook. (Id. 64-78.) Exhibit 7 offers background information about special investigation 18 units and is cited as support in Mr. Flood’s report. (See id. 6-7, 11, 79-98.) As an insurance 19 industry expert, Mr. Flood may address the factual question of whether an insurer deviated 20 from the industry standard, but not the ultimate legal issues of whether the Defendant 21 breached the insurance contract or acted in bad faith. See Hangarter, 373 F.3d at 1016-17 22 (concluding that an expert witness was permitted to testify about insurance industry 23 standards and not directly about legal conclusions was proper). Thus, Mr. Flood may use 24 the exhibits to opine about the customs, practices, and standards of the insurance industry. 25 The Court therefore grants in part, as discussed herein, Defendant’s motion to 26 exclude Elliot Flood (Doc. 263). 27 11. Laura Parker 28 Plaintiff engaged Laura Parker to offer opinions about Defendant’s claims handling

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1 practices. Defendant seeks to exclude Ms. Parker’s opinions and testimony regarding 2 insurance claims handling in long-term care situations because her proffered opinions are 3 impermissible legal conclusions and medical opinions. (Doc. 264 at 2.) 4 Ms. Parker has over twenty-five years of experience in the insurance industry and 5 has specific experience with processing insurance claims and long-term care insurance 6 industry practices. (Doc. 264-1 at 3.) The Court finds her to be an expert. Ms. Parker, 7 however, offered legal conclusions including that Defendant failed to comply with its duty 8 of good faith and fair dealing. (Doc. 264-1 at 26.) She dedicates multiple pages of her report 9 for practices that violate the NAIC Model Unfair Claims Settlement Practices Act and the 10 Arizona Unfair Claims Settlement Practice Act. (Id. at 19-23.) Similarly, Ms. Parker opines 11 about how to interpret “substantial assistance,” an insurance policy term at dispute in this 12 case (Doc. 264-1 at 27-28). See Evanston Ins. Co. v. Murphy, 544 F.Supp.3d 879, 884 (D. 13 Ariz. 2021) (“The interpretation of an insurance contract is a question of law.”). Ms. Parker 14 also opines about legal conclusions when she reported that Defendant inappropriately 15 shifted the burden to prove eligibility on the insured (Doc. 264-1 at 20, 27). See id. at 885. 16 Ms. Parker also concludes that Defendant’s decisions were financially motivated—opining 17 about Defendant’s state of mind. (Id. at 26-27.) As an expert, Ms. Parker may address the 18 factual question of whether an insurer deviated from the industry standard, but not the 19 interpretation of legal issues. See Hangarter, 373 F.3d at 1016-17. Nor can she offer 20 opinions of Defendant’s or its agents’ state of mind. Regarding Ms. Parker’s “medical 21 opinions,” Plaintiff agrees that Ms. Parker is not a medical expert and shall not be used to 22 provide medical opinions. (Doc. 289 at 9.) Thus, Ms. Parker may only opine about the 23 customs, practices, and standards of the insurance industry. 24 The Court therefore grants in part, as discussed herein, Defendant’s motion to 25 exclude Laura Parker (Doc. 264). 26 12. Dr. Kamran Samakar 27 Plaintiff engaged Dr. Kamran Samakar to respond to the conclusions of Dr. John 28 Nye, Defendant’s third-party administrator CHCS Services, Inc.’s medical director.

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1 Dr. Samakar opines that as a general surgeon, Dr. Nye is not qualified to opine about how 2 Plaintiff’s Meniere’s disease and Chiari malformation affected her capacity to perform 3 activities of daily living. (Doc. 265-1 at 2.) Dr. Samakar, like Dr. Nye, is a board-certified 4 general surgeon. (Id.) Defendant seeks to exclude Dr. Samakar’s opinion claiming it is not 5 based on any specialized knowledge, skill, training, education, or experience pertaining to 6 the long-term care insurance industry. (Doc. 265 at 2.) Defendant also argues that Dr. 7 Samakar’s opinion is speculative and contrary to applicable law. (Id. at 4-9.) 8 As discussed, an expert need not be a specialist, but instead “be of a certain 9 profession, such as a doctor.” Doe, 971 F.2d at 385. Further, lack of specialized knowledge 10 impacts the weight of the expert’s testimony, not the admissibility of the testimony. Garcia, 11 7 F.3d at 890. Therefore, as a general surgeon, Dr. Samakar possesses the expertise to opine 12 about general surgeons and their education and medical expertise. Presumably, 13 Dr. Samakar will use his experience as a general surgeon to offer testimony about the 14 veracity of Dr. Nye’s conclusions. See Sandoval-Mendoza, 472 F.3d at 655; see also Fed. 15 R. Evid. 702, advisory committee’s note to 2000 amendment (“Some types of expert 16 testimony will be more objectively verifiable, and subject to the expectations of 17 falsifiability, peer review, and publication, than others. Some types of expert testimony 18 will not rely on anything like a scientific method, and so will have to be evaluated by 19 reference to other standard principles attendant to the particular area of expertise.”). 20 Defendant argues that Dr. Samakar’s opinion disregards 26 U.S.C. § 7702(B)(c)(4) 21 and Arizona Administrative Code § R20-6-1002(A), which broadly permit a general 22 surgeon to make eligibility determinations under a long-term care policy. (Doc. 265 at 7- 23 8.) This argument, however, amounts to Defendant disagreeing with Dr. Samakar’s 24 conclusions, not his expertise. Defendant can test the sufficiency of these opinions and 25 attempt to discredit them at trial using its own evidence and expert witnesses. See Daubert, 26 509 U.S. at 596. Indeed, Defendant’s knowledge of Dr. Nye’s qualifications and underlying 27 analysis of the medical record helps ameliorate concerns regarding the admissibility of Dr. 28 Samakar’s opinions. To the extent Defendant believes the record does not support Dr.

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1 Samakar’s conclusions, it is uniquely positioned—having ordered Dr. Nye’s report and 2 supplying him with the insurance claim file—to expose any inadequacies or inconsistencies 3 in Dr. Samakar's opinions. There is no reason to believe a jury would not understand or 4 give weight to Defendant’s arguments. 5 The Court therefore denies Defendant’s motion to exclude Dr. Samakar (Doc. 265). 6 IV. CONCLUSION 7 Accordingly, 8 IT IS ORDERED denying Defendant’s Motion to Strike Untimely Disclosed 9 Witnesses, Documents and “Supplemental” Expert Report (Doc. 259). 10 IT IS FURTHER ORDERED granting in part and denying in part Plaintiff’s 11 Motion to Exclude Expert Testimony from Dr. Lorne Label on Meniere’s Disease, Chiari 12 malformations, and Somatization Disorders (Doc. 266), as described herein. 13 IT IS FURTHER ORDERED denying Plaintiff’s Motion to Exclude Expert 14 Testimony from Dr. Abraham Jacob (Doc. 270). 15 IT IS FURTHER ORDERED granting Plaintiff’s Motion to Exclude Expert 16 Testimony from Defendant on Life Expectancy and Co-Morbidities (Doc. 267). 17 IT IS FURTHER ORDERED granting Plaintiff’s Motion to Exclude Expert 18 Testimony from Defendant on the Standards of a General Surgeon (Doc. 268). 19 IT IS FURTHER ORDERED granting in part and denying in part Plaintiff’s 20 Motion to Exclude Expert Testimony from Drs. Label and Jacob on Policy Interpretations 21 (Doc. 269), as described herein. 22 IT IS FURTHER ORDERED granting Defendant’s Motion to Exclude the 23 Opinions and Testimony of Plaintiff’s Experts Dr. Michael D. Freeman and Mark Reiser, 24 PhD. (Doc. 260). 25 IT IS FURTHER ORDERED denying Defendant’s Motion to Exclude the 26 Opinions and Testimony of Plaintiff’s Expert Dr. Dan Heffez. (Doc. 261). 27 IT IS FURTHER ORDERED denying Defendant’s Motion to Exclude the 28 Opinions and Testimony of Plaintiff’s Non-Retained Expert Constantine Moschonas

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1 (Doc. 262). 2 IT IS FURTHER ORDERED granting in part and denying in part Defendant’s 3 Motion to Exclude the Opinions and Testimony of Plaintiff’s Expert Elliot Flood 4 (Doc. 263), as described herein. 5 IT IS FURTHER ORDERED granting in part and denying in part Defendant’s 6 Motion to Exclude the Opinions and Testimony of Plaintiff’s Expert Laura Parker 7 (Doc. 264), as described herein. 8 IT IS FINALLY ORDERED denying Defendant’s Motion to Exclude the 9 Opinions and Testimony of Plaintiff’s Expert Dr. Kamran Samakar (Doc. 265). 10 Dated this 23rd day of October, 2023. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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