Rooney v. Allstate Fire and Casualty Insurance Company

• Court: District Court, D. Colorado
• Decided: January 29, 2020
• Docket: 1:17-cv-03132
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 17 cv-03132-STV

JACK E. ROONEY,

Plaintiff,

vs.

ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY A/K/A ALLSTATE INSURANCE COMPANY,

Defendant. ______________________________________________________________________

ORDER RE: OBJECTIONS TO DEPOSITION DESIGNATIONS ______________________________________________________________________

This matter comes before the Court on the Parties’ Joint Statement Re: Objections to Deposition Designations (the “Joint Statement”) [#103]. The parties’ have consented to have a United States magistrate judge conduct all proceedings in this action, including the entry of a final judgment [#12, 14], and this matter is set for a jury trial commencing on February 3, 2020 [#92]. This Court has carefully considered the parties’ submission and exhibits, the entire case file, and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the objections. The instant action arises out of a November 1, 2016 automobile accident in which Plaintiff Jack E. Rooney’s vehicle was struck by a vehicle driven by an underinsured motorist. [#3, ¶¶ 5-8] At the time of the accident, Plaintiff had underinsured motorist insurance coverage through an insurance policy issued by Defendant Allstate Fire and Casualty Insurance Company (“Allstate”). [Id. at ¶¶ 10] On December 1, 2017, Plaintiff filed this lawsuit against Allstate asserting claims for breach of contract, statutory bad faith, and common law bad faith. [Id. at 3-5] In the course of discovery, Plaintiff served Defendant with a notice of deposition that identified the topics for examination pursuant to Federal Rule of Civil Procedure

30(b)(6). On March 12, 2019, Defendant served objections to the topics identified in the notice. [#106-9] On March 15, 2019, Plaintiff served Defendant with the Amended Notice of 30(b)(6) Deposition of Allstate Insurance Company (the “Amended Notice”), which identified the eleven topics for examination. [#103-2] On March 26, 2019, Plaintiff took the videotaped deposition of Aaron Johnson—the individual Defendant designated to testify on its behalf in response to the Amended Notice. [#103-1] On January 17, 2020, in preparation for trial, the parties submitted the Joint Statement and attached thereto a complete transcript of Mr. Johnson’s deposition

testimony that identifies all of Plaintiff’s proposed designations of testimony to be offered to the jury at trial, and Defendant’s objections thereto. [#103, 103-1] The Joint Statement contains a chart identifying the basis for Defendant’s objections. For purposes of delivering its ruling on the objections, the Court has added a column to the chart contained in the Joint Statement which is populated with the Court’s ruling and a brief explanation for that ruling. No. PLAINTIFF’S DESIGNATION DEFENDANT’S Court’s Ruling OBJECTIONS 1 Page 32, line 22-Page 33, line 1 Misstates the Overruled. Question not framed as a statement of Q. Does Allstate agree that it owes its insured law law—duty that is “owed” could be contractual, the duty to conduct a reasonable investigation business practices, or legal. To extent interpreted based upon all available information? as statement of law, not prejudicial. See Colo. A. Yes Rev. Stat. § 10-3-1104(h)(IV) (prohibiting “[r]efusing to pay claims without conducting a reasonable investigation based upon all available information”). With regard to this entire line of questioning (Objection #1-7, 9) the Court may instruct the jury that the Court will provide them with the legal principles they must apply. 2 Page 34, line 23-Page 35, line 1 Legal Overruled. Asks only for Allstate’s understanding Q. Does Allstate understand that it cannot conclusion; of its obligation. To extent interpreted as delegate its duty to investigate to anyone else? vague; misstates statement of law, not prejudicial. See Cary v. A. Yes the law United of Omaha Life Ins. Co., 68 P.3d 462, 466 (Colo. 2003) (“The duty is non-delegable so that insurers cannot escape their duty of good faith and fair dealing by delegating tasks to third parties.”) 3 Page 37, line 18-Page 37, line 22 Misstates the Q. Does Allstate understand law; legal that it may not refuse to pay claims without first conclusion [Same as Objection #1] conducting a reasonable investigation based upon all available information? A. Yes. 4 Page 39, line 4-Page 39, line 13 Legal Overruled. Asks only for Allstate’s understanding Q. does Allstate understand that it is conclusion; of its obligation. To extent interpreted as inappropriate for it to compel insureds to institute misstates C.R.S. statement of law, not prejudicial. Colo. Rev. Stat. § litigation to recover amounts due under an §10-3-1104 10-3-1104(h)(VII) (prohibiting “[c]ompelling insurance policy by offering substantially less insureds to institute litigation to recover amounts than the amounts ultimately recovered in actions due under an insurance policy by offering brought by such insureds? substantially less than the amounts ultimately A. I disagree that it's inappropriate if recovered”) we have a reasonable disagreement on the value No. PLAINTIFF’S DESIGNATION DEFENDANT’S Court’s Ruling OBJECTIONS 5 Page 39, line 23-Page 40, line 10 Legal Q. So Allstate does think that it can appropriately conclusion; compel its insureds to institute litigation to recover misstates C.R.S. [Same as Objection #4] amounts due under an insurance policy by §10-3-1104 offering them substantially less than the amounts that they will ultimately recover in actions brought by them? A. And I disagree with the notion that we would compel them to initiate litigation. We would try to resolve the dispute.ꞏ If they feel that it's unable to be resolved and they want to file litigation, they have that right. 6 Page 43, line 1-Page 43, line 10 Legal Overruled. Asks only for Allstate’s understanding Q. Does Allstate understand that it is conclusion; of its obligation. To extent interpreted as inappropriate for it to--for it to delay the misstates C.R.S. statement of law, not prejudicial. Colo. Rev. Stat. § investigation or payment of a claim by requiring §10-3-1104 10-3-1104(h)(XII) (prohibiting “[d]elaying the the insured, the claimant, or a physician to submit investigation or payment of claims by requiring an a preliminary claim report and then requiring insured or claimant, or the physician of either of subsequent submissions of formal proof of loss them, to submit a preliminary claim report, and forms, both of which submissions contain then requiring the subsequent submission of formal substantially the same information? proof of loss forms, both of which submissions A. Generally, yes. contain substantially the same information”) No. PLAINTIFF’S DESIGNATION DEFENDANT’S Court’s Ruling OBJECTIONS 7 Page 44, line 16-Page 44, line 22 Legal Overruled. Asks only for Allstate’s understanding Q. Does Allstate understand that it is conclusion; of its obligation. To extent interpreted as inappropriate for it to fail to promptly provide a misstates C.R.S. statement of law, not prejudicial. Colo. Rev. Stat. § reasonable explanation on the basis in the §10-3-1104 10-3-1104(h)(XII) (prohibiting “[f]ailing to promptly insurance policy in relation to the facts or provide a reasonable explanation of the basis in applicable law for a denial of a claim or for the the insurance policy in relation to the facts or offer of a compromise settlement? applicable law for denial of a claim or for the offer A. Yes. of a compromise settlement”)

8 Page 47, line 1-Page 47, line 11 Doesn’t apply; Sustained based upon current designations as it Q. And Allstate would never demand an relevance lacks context to make it understandable to appraisal on a bodily injury claim? jury/would only confuse. If Plaintiff wants to A. That particular segment does not apply to a include this testimony, he needs to provide the bodily injury claim, no. relevant context (46:15-25). With context, Q/A is Q. Okay.ꞏ Is there anything precluding relevant as witness testifies that “it’s possible” that Allstate from doing that with its insured? Allstate could have chosen to use the appraisal A. Not that I am aware of. process. Q. Just because it's not provided for explicitly, as you allege, in relation to the bodily injury portion of the UIM claim, that doesn't preclude Allstate from using that resource, does it? No. PLAINTIFF’S DESIGNATION DEFENDANT’S Court’s Ruling OBJECTIONS 9 Page 49, line 22-Page 50, line 5 Legal conclusion Q Allstate can't delegate its claim investigation to its insured or its insured's attorney, correct? [Same as Objection #2] A. We wouldn't delegate the investigation, but as a practical matter, we are often told by the attorney that they're going to gather information and send it to us rather than give us the means to obtain that information independently. 10 Page 51, line 19-Page 51, line 23 Relevance; Overruled. Although not directly relevant. Q But, for instance, if someone has a vague Illustrates the relevant point and testimony that cracked windshield, you would have to investigate Allstate views itself as having a duty to investigate that, too, right? all claims. A. Yes.

11 Page 58, line 23-Page 59, line 9 Assumes facts; Overruled. Question asks about Allstate’s Q. And Allstate understands that there is a strong foundation understanding and not the underlying fact of public policy in the state of Colorado that whether it actually is strong public policy in insurance claims should be paid promptly, Colorado. To the extent Allstate did not have such correct? an understanding, the witness could have testified A. Yes. as such. Q. And Allstate understands that there is a strong public policy in the state of Colorado that investigations and evaluations should be done promptly, correct? A. Yes. No. PLAINTIFF’S DESIGNATION DEFENDANT’S Court’s Ruling OBJECTIONS 12 Page 60, line 25-Page 61, line 5 Speculation; Overruled. Relevant to extent part of the claims Q. Isn't it true that when somebody has to go out relevance process requires claimant to provide medical and, for instance, obtain their own medical records. No indication that Allstate lacks sufficient records to provide to Allstate, that it costs money experience to form an understanding of the cost to obtain those records, right? involved in obtaining medical records. A. Generally speaking, yes. 13 Page 61, line 10-Page 61, line 20 Speculation; Overruled. Relevant to extent part of the claims Q And if the insured has to pay to get those relevance process requires claimant to provide medical records, any amount that they receive from records. No indication that Allstate lacks sufficient Allstate, they have to pay back those costs of experience to form an understanding of the cost obtaining those records, right? involved in obtaining medical records and Allstate A. Potentially, yes. would know whether or not that cost is Q. So that would come out of the money that is reimbursable as part of the claim or paid out of the going towards their settlement, right? claimant’s own pocket. A. I suppose that's one way to look at it, yes.

14 Page 62, line 6-Page 62, line 9 Speculation; Overruled. Relevant to extent part of the claims Q. And Allstate understands that sometimes it relevance process requires claimant to provide medical costs thousands of dollars to obtain medical records. No indication that Allstate lacks sufficient records from providers. experience to form an understanding of the cost A. Right.ꞏ It depends on the case. involved in obtaining medical records No. PLAINTIFF’S DESIGNATION DEFENDANT’S Court’s Ruling OBJECTIONS 15 Page 66, line 14-Page 66, line 25 403 to the extent Overruled. Question does not relate to post- Q. what's Allstate's policy and procedure with it refers to post- litigation, but rather is expressly related to reports respect to providing an expert medical report that litigation obtained “for purposes of a claim evaluation and it obtains to its insured for purposes of a claim investigation.” evaluation and investigation? A. We would share that report. Q.ꞏ ꞏImmediately after they have – Allstate has received it? A.ꞏ ꞏThat would be the expectation, that, yes, if we're wanting to assess the claim value based on a report, that both parties should have access to the report. 16 Page 76, line 20-Page 77, line 3 Legal Sustained. The Court will instruct the jury on the Q. does Allstate agree that it is not allowed to conclusion; law. The question/answer provides no evidentiary deny a claim based upon information or evidence misstates the value and runs the risk of confusing the jury about that our Colorado court system has said is law; contrary to the appropriate legal standard inadmissible in a tort trial? the law of the A. Yeah, I'm not prepared to answer that one. case No. PLAINTIFF’S DESIGNATION DEFENDANT’S Court’s Ruling OBJECTIONS 17 Page 80, line 20-Page 81, line 11 Scope; legal Overruled. Topic 3 asks Allstate to produce a Q. Can you read [copy of Colo. Rev. Stat. § 10-4- conclusion; law witness to discuss standards and guidelines for 609], please? of the case; 403; compliance with applicable law and Allstate agreed A.ꞏ ꞏ"The amount of the coverage available 702 to produce a witness with regard to standards and pursuant to this section shall not be reduced by a guidelines applied to Plaintiff’s claim. Allstate’s setoff from any other coverage, including, but not knowledge of and compliance with this law does limited to, legal liability insurance, medical not require expert testimony or a legal conclusion. payments underinsured motorist motor vehicle insurance." Q.ꞏ ꞏDoes Allstate have any reason to dispute that that's the law in Colorado? A.ꞏ ꞏNo. Q. Does Allstate purport to abide by this provision of Colorado law? A.ꞏ ꞏYes. 18 Page 81, line 21-Page 82, line 7 Legal Overruled. Question asks about training and, in Q. Do you train your adjusters specifically not to conclusion; that context, witness explains why they do or do seek out collateral source information? foundation; not seek collateral source information based upon A.ꞏ ꞏWe train them on how to evaluate the claim, scope their understanding of the law. In response to so we have other states that we handle, Topic 3, Allstate agreed to provide a witness to obviously, and in several of those states, that sort testify as to the standards and guidelines it relied of collateral source information is admissible, so on when adjusting Plaintiff’s Claim. we do seek it out in those states.ꞏ We do not seek it out in Colorado, as a practical matter, because we know it's not admissible in terms of what my health insurance paid to -- for these bills. No. PLAINTIFF’S DESIGNATION DEFENDANT’S Court’s Ruling OBJECTIONS 19 Page 83, line 21-Page 84, line 5 Scope; legal Sustained in part and Overruled in Part. Overruled Q. Allstate agrees it would not be reasonable for conclusion; law as to first Q/A, because it asks for information its -- for it to base its decisions on amounts of the case; 403; regarding how Allstate evaluates the value of a considered from collateral sources, correct? 702 claim, but Sustained as to the second Q/A, A.ꞏ ꞏRight.ꞏ If your health insurance paid X, we're because it asks for a legal conclusion – i.e., is not saying that's what we owe. phrased in terms of what the law requires as Q. Because that's not what they're legally entitled distinguished from how Allstate applies that law. to collect, correct? Within scope, as Allstate agreed to produce a A: Correct. witness to testify as to Allstate’s policies and procedures applicable to the evaluation of Plaintiff’s claim. 20 Page 85, line 9-Page 85, line 20 Scope; legal Overruled. Within scope, as Allstate agreed to Q.ꞏ ꞏ(BY MR. NICHOLS)ꞏ Does Allstate consider conclusion; law produce a witness to testify as to Allstate’s policies it reasonable to consider the amounts paid by of the case; 403; and procedures applicable to the evaluation of Medicare or Medicaid or any other collateral 702; vague Plaintiff’s claim. Question inquires about how source in relation to somebody that does not Allstate evaluates medical claims and thus does receive benefits from that collateral source? not call for expert testimony or a legal conclusion. A.ꞏ ꞏI'm not prepared to answer that question. Q. how are Medicare reimbursement rates relative to Jack Rooney? A.ꞏ ꞏI'm not prepared to answer the question. 21 Page 89, line 18-Page 89, line 24 Relevance; Sustained. Whether Allstate has ever filed a Q. And am I correct, then, in the past ten years, scope; 403; lawsuit is overbroad and outside the scope of any for instance, Allstate has never filed a case in a 404b of the topics on which the witness was designated court of competent jurisdiction in order to resolve to testify. It is also unclear what relevance this what it believes to be a reasonable has. disagreement? A.ꞏ ꞏNot to my knowledge. No. PLAINTIFF’S DESIGNATION DEFENDANT’S Court’s Ruling OBJECTIONS 22 Page 90, line 13-Page 90, line 20 Relevance; Sustained. Whether or why Allstate has ever filed Q. And so why doesn't Allstate ever file that scope; 403; a lawsuit is overbroad and outside the scope of lawsuit in order to resolve the disagreement . . .in 404b any of the topics on which the witness was a court of competent jurisdiction? designated to testify. It is also unclear what A.ꞏ ꞏI'm not prepared to say why. relevance this has. 23 Page 92, line 15-Page 93, line 9 Relevance; Sustained in part and Overruled in Part. Sustained Q. What is Allstate's reasonable basis for not scope; 403; as to the first Q/A, because it is overbroad and agreeing to incur that expense in filing a lawsuit 404b outside the scope of any of the topics on which the and making an insured do it instead? witness was designated, but Overruled as to the A.ꞏ ꞏI -- yeah, I'm not prepared to answer that second question, because it asks about how question. Allstate handles claims similar to the Plaintiff’s in Q. Why, in Colorado, in a UIM claim where this case (UIM claim in Colorado, in which there is Allstate believes they have a reasonable a dispute about the reasonableness of the claim). disagreement with their insured, they will The Court does not understand this question to not agree to incur that expense of filing the relate to “character” and thus Rule 404(b) is lawsuit so that a court of competent jurisdiction inapplicable. can make a ruling on the disagreement? A.ꞏ ꞏWell, if I'm understanding your question -- you're reading into it, but it seems to me like you're proposing a situation where we've been asked to incur that expense and refused, and I've never run into a case where we've been asked to incur that expense. No. PLAINTIFF’S DESIGNATION DEFENDANT’S Court’s Ruling OBJECTIONS 24 Page 95, line 5-Page 95, line 14 Relevance; Sustained. Outside the scope of any of the topics Q.ꞏ ꞏDoes Allstate know how much it costs to file scope; 403; and the potential for prejudice and confusion a lawsuit in the state of Colorado? 404b outweighs any evidentiary value. A.ꞏ ꞏI'm not prepared to answer that one. Q: Does Allstate understand that it costs something in the nature of $450 for somebody to file a complaint? A.ꞏ ꞏI'm not prepared to answer it.

25 Page 96, line 1-Page 96, line 15 Relevance; Sustained. Outside the scope of any of the topics Q. But generally, on your litigation claims, you're scope; 403; and the potential for prejudice and confusion receiving bills from your attorneys for the costs of 404b outweighs any evidentiary value. the litigation, correct? A.ꞏ ꞏYes. Q. Including like filing fees and things like that, correct? A.ꞏ ꞏI assume, yes.

Q: So you know generally that -- and Allstate knows that it costs money to file things in court? A.ꞏ ꞏYes. 26 Page 109, line 15-Page 109, line 23 Vague; Overruled. The Court does not find the question of Q.ꞏ ꞏBased on your review of the factual record in relevance whether Plaintiff’s claim was typical of other UIM this case, does Allstate believe that this is pretty claims vague and whether Plaintiff’s claim was typical of how Allstate underinsured motorist unique or typical may have some relevance to claims in Colorado are handled? whether Allstate’s handling of that claim was A.ꞏ ꞏEvery claim is different, but it was fairly reasonable. typical. No. PLAINTIFF’S DESIGNATION DEFENDANT’S Court’s Ruling OBJECTIONS 27 Page 110, line 6-Page 110, line 21 Scope; Overruled. The Court understands Plaintiff to be Q.ꞏ ꞏAfter your review of this case, does Allstate relevance; 403; asking whether the adjustor handled Plaintiff’s believe that Deborah Benjamin should be vague claim correctly or whether she should receive counseled or critiqued in any way with respect to additional training to correct any mistakes made in her handling of the claim? the handling of the claim. Such an inquiry is clearly A.ꞏ ꞏYeah, I'm not prepared to answer that one. relevant and also is within the scope of the topic Q: Well, I mean, you've reviewed the file addressing how Allstate adjusted Plaintiff’s claim. yourself, right? A.ꞏ ꞏYes. Q.ꞏ ꞏYou supervise Ms. Benjamin? A.ꞏ ꞏI do now, yes. Q.ꞏ ꞏAnd based on anything you saw in your review of the file, do you think that she needs to be counseled or critiqued? A.ꞏ ꞏNo. 28 Page 113, line 2-Page 113, line 9 Relevance; 403 Sustained. How accessible knowledge of a Q.ꞏ ꞏSure.ꞏ So, I mean, that's something that is specific law about stacking is within Allstate is of pretty readily ascertained by Allstate, to know limited relevance and the tone of the questioning is whether or not you have stackable U policies? argumentative and may be prejudicial. A.ꞏ ꞏYes. Q.ꞏ ꞏAnd so is the fact of whether or not it's permissible to stack U policies in Colorado -- that's readily accessible to Allstate as well, correct? A.ꞏ ꞏYes. No. PLAINTIFF’S DESIGNATION DEFENDANT’S Court’s Ruling OBJECTIONS 29 Page 114, line 3-Page 115, line 7 Relevance Sustained in part and Overruled in Part. Sustained ꞏQ.ꞏ ꞏWhat's your understanding as to how long (there was only as to the questions about how long stacking has stacking has been permitted in Colorado on one policy, been permitted in Colorado [114:3-22], as the UM/UIM policies? nothing to length of time it has been permitted is not relevant A.ꞏ ꞏWell, the statute you gave me has an stack); 403 and the argumentative nature is potentially effective date of January 1, 2011.ꞏ So at least that prejudicial, but overruled as to the question about long. Ms. Benjamin’s inquiry into the law as part of her Q.ꞏ ꞏSure.ꞏ Does Allstate have any reason to adjustment of the claim [114:23-115:7]. Although dispute that the statute was changed, effective Defendant objects on the basis of relevance January 1, 2008 -- because stacking is not involved in this case, A.ꞏ ꞏNo. Defendant has not objected to other testimony Q.ꞏ ꞏ-- to eliminate anti-stacking language regarding stacking [See 111:12-22] and this provisions? particular question is specific to the adjuster’s A.ꞏ ꞏI would have to see the statute, but I handling of Plaintiff’s claim. don't have any reason to dispute it. Q Sure.ꞏ So Allstate agrees that certainly no later than 2011, but probably no later than 2008 stacking of U policies has been permitted in Colorado? A.ꞏ ꞏCorrect. Q.ꞏ ꞏSo when Deborah Benjamin asked Mr. Rooney's attorneys in December of 2016 to provide legal authority for their assertion that stacking of U policies is permitted in Colorado, isn't it correct that Allstate's position is that that has been the law in Colorado for at least five years, but as long as eight years? A.ꞏ ꞏI don't remember reading the note where she did that, but if she did, then I would agree with your question overall. No. PLAINTIFF’S DESIGNATION DEFENDANT’S Court’s Ruling OBJECTIONS 30 Page 116, line 21-Page 116, line 25 Vague; Sustained. As framed question is vague and Q.ꞏ ꞏSo this is, in fact, the way that Allstate speculative overbroad. expects its adjusters to act on a daily basis? A.ꞏ ꞏGenerally speaking, yes. 31 Page 117, line 8-Page 117, line 12 Vague; litigation Overruled. The Court does not find the question Q. Does Allstate agree that its interests are conduct; 403 vague or the elicited response prejudicial or adverse to Mr. Rooney in this litigation? confusing. A.ꞏ ꞏGenerally speaking, yes. 32 Page 118, line 20-Page 119, line 1 Misstates the Overruled. The question asks for how Allstate Q.ꞏ ꞏSo after reviewing this, does Allstate agree law; misleading understands and applies the law when adjusting that it is precluded by Colorado from taking a claims. To extent interpreted as statement of law, recorded statement of its injured insured within 15 not prejudicial. Colo. Rev. Stat. § 13-21-301 days of the loss? (prohibiting seeking statement from injured under A.ꞏ ꞏFor the purposes of attempting to negotiate a care of doctor within 15 days after accident for use settlement of the injury claim, yes. in negotiating settlement or obtaining release). The Court may instruct the jury that the Court will provide them with the legal principles they must apply. 33 Page 128, line 3-Page 128, line 9 Foundation; Overruled. No indication that Allstate, which ꞏQ.ꞏ ꞏDoes Allstate understand and agree that speculative regularly processes claims involving medical when somebody does not have health insurance, injuries, does not have sufficient knowledge does not have Medicare, does not have Medicaid, regarding write-offs on medical bills. typically there are no write-offs on their medical bills of the amount billed? A.ꞏ ꞏTypically, yes. No. PLAINTIFF’S DESIGNATION DEFENDANT’S Court’s Ruling OBJECTIONS 34 Page 131, line 1-Page 131, line 11 Scope; Sustained in part and Overruled in Part. Overruled Q.ꞏ ꞏAnd it's true, is it not, that Allstate relevance; 403 as to the first question as whether or not there is systematically never uses that tool in represented such a policy would have applied to the adjustment claims? of Plaintiff’s claim and thus is within the scope of A.ꞏ ꞏI would disagree with the suggestion that the topic relating to the policies and procedures there is some systematic policy not to use it. used to adjust Plaintiff’s claim and is relevant. Q. Isn't it true, as an institutional policy, Allstate Sustained as to the second question as no specifically tells its adjusters, you cannot use the response to the question was elicited at the CPT Average Cost Dashboard in represented deposition. claims, that that's only for use in unrepresented claims?

35 Page 131, line 24-Page 132, line 7 Scope; Overrruled. Overruled as to the first Q/A, because Q.ꞏ ꞏWhat am I referring to? relevance the testimony clarifies the tool about which he A.ꞏ ꞏThere is a tool that the adjusters have previously testified [130:20-25] without objection. available to go look up CPT codes based on Overruled as to the second Q/A because the Court geography and what the average bill is in that understands that the adjuster utilized the Mitchell region. program to evaluate Plaintiff’s claim and Allstate, Q.ꞏ ꞏSo if it has that tool, why does it need the although objecting to providing a witness with Mitchell program to look for that? regard to detailed information about the Mitchell A.ꞏ ꞏYeah.ꞏ I'm not prepared to answer. program, agreed to produce a witness with regard to the investigation, handling, and evaluation of Plaintiff’s claim (Topic 1). Inquiring why the Mitchell tool was used instead of the other tool thus appears relevant and within the scope. No. PLAINTIFF’S DESIGNATION DEFENDANT’S Court’s Ruling OBJECTIONS 36 Page 133, line 11-Page 135, line 12 Scope; Overruled. Allstate agreed to produce a witness to ꞏQ.ꞏ ꞏOkay.ꞏ And you would agree, would you not, relevance; 403 testify with regard to the policies and procedures that Allstate has a written policy that when an used to adjust Plaintiff’s claim and the witness adjuster is working on an unrepresented claim, agrees that this policy applied to the adjustment of they may use the CPT Average Cost Dashboard UIM policies in Colorado. to help estimate the amounts of those bills based on the service the injured parties received and the service area where the injured party was treated. * * * Q.ꞏ ꞏAnd so this is effectively an instruction on

what to do when you're missing specials in a represented claim versus what to do when you're missing specials in an unrepresented claim, correct? A.ꞏ ꞏYes. Q.ꞏ ꞏAnd those policies are different, correct? * * * A: Okay.ꞏ Yes.ꞏ The two are different. Q.ꞏ ꞏWhat's Allstate's reasonable basis for having different policies and procedures with respect to what its claim handers should do when they're missing medical specials on represented claims as opposed to unrepresented claims? A.ꞏ ꞏI'm not prepared -- I'm not prepared to answer the question. Q.ꞏ ꞏYou have no understanding of why Allstate treats represented people differently? A.ꞏ ꞏI'm not prepared to answer it. Q.ꞏ Isn't this information that's regarding how Allstate handles UM/UIM claims in Colorado? A.ꞏ ꞏYes. No. PLAINTIFF’S DESIGNATION DEFENDANT’S Court’s Ruling OBJECTIONS 37 Page 137, line 4-Page 137, line 15 Scope; Overruled. Allstate agreed to produce a witness to Q.ꞏ ꞏSo can you tell me what the -- Allstate's foundation; legal testify with regard to the policies and procedures reasonable basis is for having a different standard conclusion; used to adjust Plaintiff’s claim and the witness for its adjusters as to what they are supposed to relevance agrees that this policy applied to the adjustment of do in Colorado when they're missing medical UIM policies in Colorado. specials on a UIM claim, for claims that are represented by an attorney as opposed to claims that are unrepresented by an attorney? A.ꞏ ꞏAnd that's what I can't answer.ꞏ If you have a question about what is the policy, I can

answer that for you. As to what the reasonable basis is for having different policies, I am unable to answer that. 38 Page 137, line 21-Page 138, line 8 Scope; Sustained. Although the Court finds the prior Q.ꞏ ꞏYou don't think that Allstate's required to foundation; legal question regarding the basis for the policy applied have a reasonable basis for treating its conclusion; to Plaintiff’s claim relevant and within the scope, unrepresented insureds differently than its relevance these questions are argumentative and relate to represented insureds? institutional knowledge and beliefs of Defendant A.ꞏ ꞏI'm not prepared to answer the question. that go beyond the scope of the designated topics. Q.ꞏ ꞏSo Allstate doesn't know what its reasonable basis is for treating individuals that had the exact same -- to which it owes the exact same contractual duties differently because they have an attorney or they don't?

A.ꞏ ꞏI'm not prepared to answer the question. No. PLAINTIFF’S DESIGNATION DEFENDANT’S Court’s Ruling OBJECTIONS 39 Page 138, line 15-Page 139, line 1 Scope; Overruled. Allstate agreed to produce a witness to Q.ꞏ ꞏBut you agree, based upon this page, that foundation; legal testify with regard to the policies and procedures you systematically have claim investigation tools conclusion; used to adjust Plaintiff’s claim and the witness that are available to adjusters handling relevance agrees that this policy applied to the adjustment of unrepresented claims that are not available to UIM policies in Colorado. adjusters handling represented claims? A.ꞏ ꞏI disagree with that, too.ꞏ It's not that the tool -- the CPT Average Cost Dashboard is unavailable to represented adjusters.ꞏ It's a matter of we don't estimate the bills on

represented claims. Q.ꞏ ꞏWhy? A.ꞏ ꞏYou're back into I can't answer territory. I’m not prepared. 40 Page 139, line 8-Page 139, line 13 Relevance Overruled. The Court finds it relevant that the CPT Q.ꞏ ꞏDo -- the claim handlers that you supervise Average Cost Dashboard was an available tool to that are dealing with represented claims, do you the adjuster evaluating Plaintiff’s claim. ever get those requests to use the CPT Average Cost Dashboard in represented claims? A.ꞏ ꞏThey wouldn't have to ask me if they wanted to use it.ꞏ They could just go use it. No. PLAINTIFF’S DESIGNATION DEFENDANT’S Court’s Ruling OBJECTIONS 41 Page 143, line 2-Page 144, line 7 Relevance Overruled. Allstate agreed to produce a witness to Q.ꞏ ꞏAnd as you stated before the break, there is testify with regard to the policies and procedures a different standard for what adjusters are used to adjust Plaintiff’s claim and the witness expected to do when they're missing medical agrees that this policy applied to the adjustment of specials in an unrepresented claim as opposed to UIM policies in Colorado. a represented claim, correct? A.ꞏ ꞏCorrect. Q.ꞏ ꞏAnd what's Allstate's reasonable basis for having that differentiation? A.ꞏ ꞏWell, with the represented claims, we are --

we expect that the attorney has obtained the information already, basically; that in order to know what the claim is going to be worth, they've obtained medical records and bills.ꞏ So -- and if they haven't, they certainly have the experience and ability to go out and obtain them, the wherewithal; whereas with an unrepresented person, they're lacking that experience, generally speaking.ꞏ So it's an effort to try to assist them to be able to resolve their claim. Q. Then why -- if Allstate has that expectation that the attorneys will provide them the medical records, why, in a represented claim, does Allstate still submit requests to attorneys to provide Allstate with medical records release authorizations? A.ꞏ ꞏWell, we still want to have the ability to investigate the claim as best we can.ꞏ If the attorney's going to do that on their own, then as long as we're getting the information we need, we're fine with that.ꞏ But we always want to give the option of handling that investigation on our own. No. PLAINTIFF’S DESIGNATION DEFENDANT’S Court’s Ruling OBJECTIONS 42 Page 157, line 10-Page 157, line 14 Legal conclusion Overruled. The Court does not find the mere use Q. What’s Allstate’s reasonable basis for not of the phrase “reasonable basis” to call for a legal [raising issue of medical release language]? conclusion. Indeed, Defendant does not object to A.ꞏ ꞏI mean, you would have to ask Deb why she testimony in which the witness testified that Allstate didn't raise that issue. needs to have a “reasonable basis” for refusing to consider a portion of the claim. [57:16-20] The Court may instruct the jury that the Court will provide them with the legal principles they must apply.

43 Page 158, line 8-Page 158, line 13 Scope; Overruled. Witness testified that the medical Q.ꞏ ꞏDid the med pay department ever make use relevance; 403 records authorization provided was for med pay, so of the medical records release authorization? the question is relevant and within the scope of A.ꞏ ꞏYeah, I'm not prepared to talk about what Topic 1 relating to Defendant’s investigation, the med pay department did or didn't do. handling, and evaluation of Plaintiff’s UIM claim. Although the medical portion of the claim may have been handled separately, the Court finds the question within the scope of the designated topic. No. PLAINTIFF’S DESIGNATION DEFENDANT’S Court’s Ruling OBJECTIONS 44 Page 159, line 7-Page 159, line 11 Scope; Overruled. Witness testified that the medical Q. Did the med pay department use Mitchell in relevance; 403 records authorization provided was for med pay, so evaluating the med pay claim? the question is relevant and within the scope of A.ꞏ ꞏI'm not prepared to answer that one. Topic 1 relating to Defendant’s investigation, handling, and evaluation of Plaintiff’s UIM claim. Although the medical portion of the claim may have been handled separately, the Court finds the question within the scope of the designated topic. 45 Page 174, line 23-Page 175, line 1 Vague; Overruled. The Court does not find the question Q.ꞏ ꞏAnd that is true with respect to any of relevance vague, nor is there any indication that the witness Allstate's decisions; they have to be reasonable, did not understand the question, and Defendant’s correct? view on its obligation to make reasonable decisions A: Yes. in the adjustment of Plaintiff’s claim is relevant. No. PLAINTIFF’S DESIGNATION DEFENDANT’S Court’s Ruling OBJECTIONS 46 Page 175, line 21-Page 176, line 17 Scope; Sustained. The Court agrees that the witness’s Q.ꞏ I just sent you a Washington Post article relevance; 404; opinion with regard to Mr. Wilson’s alleged dated Sunday April 30, 2006, and the portion I'd hearsay; 403; statement is outside the scope of the designated like to direct you to is on page 3. And you see authentication topics and—taken out of context and without where Mr. Wilson is being quoted there in the application to the specific claim at issue—is of third paragraph? limited relevance that is outweighed by the Q.ꞏ ꞏCan you read that quote? potential for prejudice and confusion. A.ꞏ ꞏJust the quote, without the context around it is, "Our obligation is to earn a return for our shareholders, not to assume risks from people for a price that is not fair and adequate." Q.ꞏ ꞏAllstate's claims department's position is

that it's their obligation to earn a return for its shareholders? A.ꞏ ꞏOur obligation is to pay what we owe on the claims that are presented to us. Q.ꞏ ꞏ So you disagree with Mr. Wilson on that point? A.ꞏ ꞏI'm not prepared to opine on Mr. Wilson's statement. No. PLAINTIFF’S DESIGNATION DEFENDANT’S Court’s Ruling OBJECTIONS 47 Page 177, line 8-Page 179, line 1 Scope; Sustained. The Court agrees that the witness’s Q.ꞏ ꞏCan you turn to page 7 of 17 on this, and it relevance; 404; opinion with regard to Ms. Katzman’s alleged appears to be a Bloomberg article that we're hearsay; 403; statement is outside the scope of the designated looking at, correct? authentication topics and—taken out of context and without A.ꞏ ꞏYes. application to the specific claim at issue—is of * * * limited relevance that is outweighed by the Q.ꞏ ꞏAnd that paragraph right above it is what I potential for prejudice and confusion. want to direct your attention to.ꞏ And here, do you agree, do you not -- Allstate agrees, does it not, that one of its former claim handlers is saying that its supervisors told them to lie? A.ꞏ ꞏYeah, I'm not prepared to answer any

questions about this thing. Q.ꞏ ꞏDo you disagree that this person said this? A.ꞏ ꞏSaid what? Q. Do you disagree that Ms. Katzman said that we were told to lie by our supervisors? A.ꞏ ꞏIt's the quote on the page, but I'm not prepared to talk about this at all. Q.ꞏ ꞏDo you disagree that somebody at Allstate said it's tough to look at people and know you're lying? A.ꞏ ꞏAgain, all I can do is read what's here. I'm not prepared in any way -- I've never seen this before. Q.ꞏ ꞏYou agree that's what it says, though? A.ꞏ ꞏThat's what it says. Q.ꞏ ꞏAnd she's talking about her work at Allstate, correct? A. It would appear No. PLAINTIFF’S DESIGNATION DEFENDANT’S Court’s Ruling OBJECTIONS 48 Page 181, line 5-Page 181, line 7 Relevance; Overruled. The question is a follow-up to the prior Q.ꞏ ꞏAnd the CPT Average Cost Dashboard, scope Q/A—to which there is no objection—about the correct? tools available to adjusters and the witness had A.ꞏ ꞏYes. previously testified with regard to the use of the CPT Average Cost Dashboard.

49 Page 181, line 8-Page 181, line 19 Scope; Sustained. Allstate’s knowledge of a specific court Q.ꞏ ꞏDoes Allstate acknowledge that the U.S. relevance; legal ruling—as distinguished to Allstate’s application of District Court for the District of Colorado has held conclusion; law that holding to the claim at issue—is outside the that it is the amount of the medical expenses that of the case scope of the designated topics and is not relevant. are billed rather than the amount which is ultimately paid by collateral sources that establishes the amount of damages recoverable under Colorado law for medical expenses sustained by an accident victim? A.ꞏ ꞏYeah, I didn't review the ruling to know. Q: And that was in the -- that was Judge Arguello in Robinson versus Terwilliger case.ꞏ Have you ever heard of that? No. PLAINTIFF’S DESIGNATION DEFENDANT’S Court’s Ruling OBJECTIONS 50 Page 182, line 5-Page 182, line 11 Relevance; legal Sustained. Allstate’s knowledge of a specific court Q.ꞏ ꞏDoes Allstate acknowledge that Magistrate conclusion; ruling—as distinguished to Allstate’s application of Judge Wong specifically told Allstate that it scope; law of the that holding to the claim at issue—is outside the cannot reasonably rely on any collateral sources case scope of the designated topics and is not relevant. to evaluate medical bills for trial, in the Romero versus Allstate case? A.ꞏ ꞏI'm not prepared to answer that one. 51 Page 188, line 13-Page 188, line 18 Relevance; Overruled. Witness agreed with proposition that Q: Despite the fact that Allstate was taking the misstates Allstate had concluded that Plaintiff didn’t have a position that he didn't have a valid UIM claim at evidence/argum valid UIM claim [186:12-19] and Defendant is not that time and thus was denying it? entative (as objecting to that testimony. This question merely A.ꞏ ꞏWe were still handling a med pay claim that it denial) expands on that unobjected-to testimony. would have been relevant to.

52 Page 190, line 24-Page 191, line 9 Post-litigation; Overruled. Question addresses why a medical Q: What’s Allstate’s reasonable basis for waiting relevance; 403 expert was not engaged during the pre-litigation until October of 2018 to hire a medical expert to evaluation of Plaintiff’s claim. review Mr. Rooney's claim and conduct an IME? A.ꞏ ꞏIt was at that point that we'd had enough information to review to believe that there was some question about the relatedness of the surgery that he was claiming was related to the

accident.ꞏ So we wanted to get the medical expert opinion so we could resolve that question. No. PLAINTIFF’S DESIGNATION DEFENDANT’S Court’s Ruling OBJECTIONS 53 Page 193, line 18-Page 194, line 1 Legal Overruled. The question is not framed in terms of Q: Does Allstate agree that Dr. Castro's opinions, conclusion; a statement of law, but rather clarifies Allstate’s then, could not logically explain or justify any of misstates the rationale for engaging Dr. Castro. The Court may Allstate's pre-litigation decisions or conduct law; relevance instruct the jury that the Court will provide them because his opinions did not exist prior to the with the legal principles they must apply. commencement of litigation? A.ꞏ ꞏI don't think we asked him to justify our handling.ꞏ We've asked him to help us resolve the value dispute that's ongoing in this case. 54 Page 194, line 24-Page 195, line 6 403; 404; post- Overruled. Although somewhat argumentative, the Q.ꞏ ꞏBut Allstate often hires doctors to offer litigation conduct Court does not find the question or resulting opinions against their insureds in lawsuits such as answer prejudicial or confusing to the jury. The this regarding injuries or treatment its insureds Court does not understand this question to relate were claiming were caused by a particular to “character” and thus Rule 404 is inapplicable. accident, correct? A.ꞏ ꞏWe hire medical experts where we need their opinion to help resolve a dispute. No. PLAINTIFF’S DESIGNATION DEFENDANT’S Court’s Ruling OBJECTIONS 55 Page 197, line 2-Page 197, line 13 Scope Overruled. The Court finds that the questions Q.ꞏ ꞏDoes Allstate know of any medical providers relate to how Mitchell DecisionPoint was used to that offer services for the rates that are produced evaluate Plaintiff’s specific claim, and Allstate during the Mitchell DecisionPoint program? agreed to produce a witness to address Allstate’s A.ꞏ ꞏYeah, I'm not prepared to answer that. evaluation of Plaintiff’s claim. Moreover, Plaintiff Q.ꞏ ꞏ Does Allstate know of any medical providers has designated subsequent testimony asking that would be willing to accept the amount that similar questions regarding Allstate’s knowledge of Allstate evaluated to be reasonable using the the prices that medical providers would charge or Mitchell DecisionPoint program in Mr. Rooney's accept for services [281:12-22], to which claim? Defendant has not objected. A.ꞏ ꞏI'm not prepared to answer it. No. PLAINTIFF’S DESIGNATION DEFENDANT’S Court’s Ruling OBJECTIONS 56 Page 198, line 20-Page 199, line 20 Scope; and see Sustained in Part and Overruled in Part. Sustained Q.ꞏ ꞏWhat is Allstate's understanding as to what objection and as to the first three Q/As [198:20-199:10] as they Sentry Rules are in the Mitchell DecisionPoint discussion on relate to the operation of Mitchell DecisionPoint in program? the record at pp. general and the Court understands that Allstate A.ꞏ ꞏI'm not prepared to answer questions with 199:21 – 201:9 offered to produce a different witness on those how Mitchell works. topics and Plaintiff declined. Overruled as to final Q.ꞏ ꞏAren't the Sentry Rules, though, identified in two questions [199:11-20], because they relate those training materials that are sitting in front of more directly to how Plaintiff’s specific claim was you? evaluated, which is a topic for which Allstate A.ꞏ ꞏThey may be, but I'm not prepared to answer agreed to produce a witness. about the Mitchell tool. Q.ꞏ ꞏDo you know what a Sentry Rule is? A.ꞏ ꞏNo, I'm not prepared to answer that. Q. Isn't it true that Sentry Rules were applied to Mr. Rooney's medical bills via the Mitchell

DecisionPoint program in this case? A.ꞏ ꞏI imagine that they were. Q.ꞏ ꞏ But you don't know what Sentry Rules are? A.ꞏ ꞏI'm not prepared to answer about Sentry Rules. 57 Page 201, line 16-Page 201, line 22 Scope; Sustained. The question appears to relate to the Q.ꞏ ꞏWhat is the Mitchell centralized input team? relevance operation of Mitchell DecisionPoint in general and A.ꞏ ꞏIt's pretty much what it sounds like. It's just a the Court understands that Allstate offered to centralized group that we can submit medical bills produce a different witness on those topics and to, to have them input the bills into the tool so that Plaintiff declined. the adjuster can then utilize the tool. No. PLAINTIFF’S DESIGNATION DEFENDANT’S Court’s Ruling OBJECTIONS 58 Page 207, line 1-Page 208, line 5 Scope; Sustained. The referenced email relating to a Q.ꞏ ꞏHere we have an e-mail dated January 7, foundation; separate lawsuit is outside the scope of the 2019.ꞏ This is in regards to the Herrera versus hearsay; designated topics, as is the document retention Allstate matter.ꞏ Are you familiar with that case at relevance; 403 policy within the Mitchell DecisionPoint program. all? A.ꞏ ꞏIt doesn't ring a bell. Q.ꞏ ꞏOkay.ꞏ And you recognize Ms. Wagner, the author of this e-mail? A.ꞏ ꞏYes.

Q.ꞏ ꞏAnd she is outside counsel for Allstate on some first-party litigation in Colorado, correct? A.ꞏ ꞏYes. * * * Q.ꞏ ꞏAnd it says, "In relation to your question regarding the Mitchell consults and your request for the reports generated on various dates, it is our understanding that when Mitchell is updated for any reason, the report is updated and the prior reports are not retained."ꞏ Do you see that? 24ꞏ ꞏ ꞏ ꞏ ꞏ ꞏA.ꞏ ꞏYeah. Q: Is that your understanding of how documents are or are not saved in the Mitchell program? A.ꞏ ꞏYeah, and I would say that this is still consistent with what I'm saying, as well. No. PLAINTIFF’S DESIGNATION DEFENDANT’S Court’s Ruling OBJECTIONS 59 Page 211, line 21-Page 212, line 5 Scope Overruled. This testimony relates directly to how Q.ꞏ ꞏWouldn't that comments section give us the Plaintiff’s specific claim was evaluated, which is a explanation for why she decided to override these topic for which Allstate agreed to produce a amounts that Mitchell generated? witness, and relates specifically to the prior A.ꞏ ꞏThat is likely what would be there, yes. testimony [211:5-20] to which there is no objection. Q.ꞏ ꞏAnd so without that, we have no way of knowing what the basis for those overrides were, do we? A.ꞏ ꞏIn this case, no. 60 Page 212, line 6-Page 212, line 19 Scope; Sustained. Plaintiff has not designated testimony Q: Allstate understands that Medicaid pays much relevance; from this witness indicating that Medicaid or less for a service than what a doctor typically foundation medicare rates were used to evaluate his claim charges, correct? and thus it is neither relevant nor within the scope A.ꞏ ꞏI didn't -- I didn't come prepared to talk about of the topics for which this witness was designated. Medicare -- Medicaid reimbursement rates, but generally speaking, yes, that's been my experience. Q.ꞏ ꞏAnd Allstate understands that some doctors won't even treat Medicare patients?

Q.ꞏ ꞏBecause of that? A.ꞏ ꞏAnd, again, I didn't come prepared to talk about that.ꞏ But from my personal experience, I've heard of that being the case. No. PLAINTIFF’S DESIGNATION DEFENDANT’S Court’s Ruling OBJECTIONS 61 Page 212, line 20-Page 213, line 2 Scope; law of Sustained. Plaintiff has not designated testimony Q.ꞏ ꞏAnd Allstate understands that the state of the case; from this witness indicating that Medicaid or Colorado has determined that amounts paid by foundation Medicare rates were used to evaluate his claim Medicare or Medicaid are also collateral sources [215:24-216:5] and thus it lacks foundation, is not that are inadmissible in determining what a relevant, and is not within the scope of the topics customer is legally entitled to collect from the for which this witness was designated. The Court tortfeasor? also finds the question misleading and given that A. Yeah. I’m not prepared to answer that no response was given, it has no evidentiary value. question. 62 Page 213, line 3-Page 213, line 22 Scope; law of Sustained. Plaintiff has not designated testimony Q.ꞏ ꞏAnd even though Allstate is aware that the case; from this witness indicating that Medicaid or amounts Medicare or Medicaid charge are foundation Medicare rates were used to evaluate his claim inadmissible for determining what a customer's [215:24-216:5] and thus it lacks foundation, is not legally entitled to collect, Allstate still, as a regular relevant, and is not within the scope of the topics institutional practice, utilizes a service that gives it for which this witness was designated. Moreover, Medicare reimbursement rates to use for the question relates to the operation of Mitchell negotiating with claimants? DecisionPoint in general, a topic for which this Q.ꞏ ꞏIs that correct? witness was not designated. The Court also finds A.ꞏ ꞏI interpret your question to be asking me how the question misleading and given that no the Mitchell program works, and that's not response was given, it has no evidentiary value. something I came prepared to discuss. Q.ꞏ ꞏ I am correct, am I not, that it would be utterly unreasonable for Allstate to decide to use collateral source numbers that it knows are inadmissible in a court of law in order to avoid making Fisher payments? A.ꞏ ꞏI'm not prepared to ask (sic) that; it sounds like you're asking me for a legal conclusion. No. PLAINTIFF’S DESIGNATION DEFENDANT’S Court’s Ruling OBJECTIONS 63 Page 215, line 16-Page 216, line 5 Scope Sustained in Part and Overruled in Part. Sustained Q.ꞏ ꞏAnd Allstate agrees that the Mitchell as to the first Q/A as it relates to the operation of DecisionPoint program, in some way, uses Mitchell DecisionPoint in general and the Court Medicare reimbursement rates in evaluating the understands that Allstate offered to produce a reasonableness of medical expenses being different witness on those topics and Plaintiff claimed by a person injured in a claim? declined. Overruled as to final Q/A, because it A.ꞏ ꞏYeah, I didn't come prepared today to talk relates directly to how Plaintiff’s specific claim was about how the Mitchell program works. evaluated, which is a topic for which Allstate Q.ꞏ ꞏWell, didn't Allstate use Medicare agreed to produce a witness. reimbursement data to evaluate the reasonable value of Mr. Rooney's medical expenses in this case? A.ꞏ ꞏYeah.ꞏ Again, I'm not prepared to talk about how the Mitchell program works. 64 Page 218, line 8-Page 218, line 14 Scope Overruled. There is subsequent testimony [221:9- Q.ꞏ ꞏWhat is an EDR limit? 11]—to which Defendant does not object— A.ꞏ ꞏShort for expected recovery date. establishing that an ERD adjustment was used in Q.ꞏ How was an expected recovery date evaluating Plaintiff’s claim. This testimony thus is calculated? relevant to the adjustment of Plaintiff’s claim, a A.ꞏ ꞏI'm not prepared to answer that. topic for which the witness was designated. 65 Page 219, line 10-Page 219, line 24 Scope Sustained. Q/A relates to the operation of Mitchell Q.ꞏ ꞏSo isn't this saying that Mitchell is denying all DecisionPoint in general and the Court soft tissue medical treatment after 56 days of understands that Allstate offered to produce a treatment automatically? different witness on those topics and Plaintiff Q.ꞏ ꞏAnd I know you're going to tell me you didn't declined.. come prepared to talk about it. A.ꞏ ꞏI didn't know if you were waiting on me or not.ꞏ Right.ꞏ I'm not prepared to talk about how Mitchell works. No. PLAINTIFF’S DESIGNATION DEFENDANT’S Court’s Ruling OBJECTIONS 66 Page 221, line 12-Page 221, line 19 Scope Overruled. The Q/A is specific to how Plaintiff’s Q.ꞏ ꞏAnd so it's correct that Allstate's expectation claim was adjusted and thus is within the scope of would be that Deborah Benjamin would review Topic One for which the witness was designated. that adjustment and determine whether or not that marking off treatment after 56 days is reasonable or not, correct? A.ꞏ ꞏIf that's the specific rule that's run in there, yes. 67 Page 233, line 6-Page 233, line 11 Scope Overruled. The context of the question relates to Q.ꞏ ꞏDoes the Mitchell program anywhere the specific Mitchell program report generated for delineate whether these reports are for UM/UIM Plaintiff’s claim and thus the Court finds it to be or med pay?ꞏ Is there any way we can look at within the scope of Topic One for which the these reports from the outside and make that witness was designated. determination? A.ꞏ ꞏNo.ꞏ I mean -- no, not that I can tell. 68 Page 235, line 12-Page 235, line 15 403; law of the Overruled. The Q/A seeks to clarify the scope of Q.ꞏ ꞏWould the state-specific book contain case information available to the adjuster. It does not information about Colorado's billed-versus-paid include a statement of law and the Court does not law? find it prejudicial or confusing. A.ꞏ ꞏI believe it does, yes. 69 Page 238, line 2-Page 238, line 10 Scope Sustained. The Q/A appears to seek information Q.ꞏ ꞏAre you aware of whether or not Colorado -- regarding how the Colossus software works. or, excuse me, Allstate does anything to tune Based upon the objections to the deposition notice Colossus for specifically Colorado?. and other information provided to the Court, the A.ꞏ ꞏI'm not prepared to answer that. Court understands that Defendant only agreed to Q.ꞏ Do you know what I mean when I use the provide a witness to testify with regard to the use word "tune"? of Colossus specific to the evaluation of Plaintiff’s A.ꞏ ꞏOnly very generally. claim. The Q/A thus appears to exceed the scope of the topic for which the witness was designated. No. PLAINTIFF’S DESIGNATION DEFENDANT’S Court’s Ruling OBJECTIONS 70 Page 265, line 25-Page 266, line 19 Scope; Sustained in Part and Overruled in Part. Overruled Q.ꞏ ꞏSuch as why isn't there a similar letter for relevance as to the first Q/A [265:25-266:3] as it is a Mitchell DecisionPoint? continuation of the prior questioning [265:3-24] to A.ꞏ ꞏI'm not prepared to answer. which there is no objection. Sustained as to the Q.ꞏ ꞏOr the CPT Average Cost Dashboard? remaining Q/As [266:4-19] as they seek A.ꞏ ꞏI'm not prepared to answer. information regarding how the software works, Q.ꞏ ꞏDo you know where the CPT Average Cost which is beyond the scope of any of the designated Dashboard gets its data, what data is being topics. related through that program? A.ꞏ ꞏI'm not prepared to answer. Q.ꞏ ꞏPresumably, since it's an average cost dashboard, it's not an average payment dashboard, it's the average amounts of how much

medical providers are charging, not how much they are accepting as payment for services, correct? A.ꞏ ꞏThat's my assumption. 71 Page 279, line 2-Page 279, line 10 Post-litigation; Overruled. The Court does not find the mere use Q.ꞏ ꞏWhat's Allstate's reasonable basis for not relevance; 403; of the phrase “reasonable basis” to call for a legal having paid him UIM benefits as of today? legal conclusion; conclusion. Indeed, Defendant does not object to A.ꞏ ꞏWell, at the time the litigation was initiated, foundation testimony in which the witness testified that Allstate we were still trying to investigate the relatedness needs to have a “reasonable basis” for refusing to of the surgery.ꞏ Without the surgery being related, consider a portion of the claim. [57:16-20] The it appeared that he had been adequately Court may instruct the jury that the Court will compensated by the hundred thousand dollars provide them with the legal principles they must that he received from American Family. apply. The Court does not find the Q/A to be prejudicial or confusing, and it is relevant to the handling of Plaintiff’s claim. No. PLAINTIFF’S DESIGNATION DEFENDANT’S Court’s Ruling OBJECTIONS 72 Page 282, line 6-Page 282, line 10 Scope; Sustained. The Q/A relates to information Q.ꞏ Can the CPT Average Cost Dashboard be relevance regarding how the software works generally, which used to estimate the cost of future medical is beyond the scope of any of the designated services? topics. A.ꞏ ꞏYeah, I'm not prepared to answer.

73 Page 282, line 11-Page 282, line 14 Scope Sustained. The Q/A does not appear relevant or Q.ꞏ Is Allstate familiar with an individual by the related to the topics for which the witness was name of Jeffrey Thomas? designated as, at best, it relates to the use of A.ꞏ ꞏI don't personally know that name, no. Mitchell generally. 74 Page 283, line 2-Page 283, line 9 Scope; 403; 404; Sustained. The Q/A is related to the use of Michell Q: Does Allstate disagree with Mr. Thomas's hearsay; generally—a topic for which the witness was not statement in the Chung case that it uses the foundation; designated. The Court understands that Allstate Mitchell DecisionPoint program as a cost-saving relevance offered to produce a different witness on those measure which it then uses to in turn pass on topics and Plaintiff declined. Moreover, as those savings to its customers in the form of phrased, the question is confusing and prejudicial reduced premiums? as it references a statement made in a different A.ꞏ ꞏI'm not prepared to answer the question case by an individual unassociated with the current case and without context. No. PLAINTIFF’S DESIGNATION DEFENDANT’S Court’s Ruling OBJECTIONS 75 Page 283, line 13-Page 284, line 7 Scope; Sustained. None of the topics for which the Q.ꞏ ꞏ does Allstate know how much Mr. Rooney's relevance; 403 witness was designated relate to the premiums paid in UM/UIM premiums . . . [d]uring the time paid by Plaintiff for his UIM coverage. that he's been insured with Allstate? A.ꞏ ꞏI didn't come prepared to answer that. Q.ꞏ ꞏDoes Allstate know whether or not his UIM premiums have decreased at all in the time that he's been insured with . . . Allstate for UM/UIM?

A.ꞏ ꞏYeah, I'm not prepared to answer. Q.ꞏ ꞏWould Allstate be surprised to find out that his premiums never decreased during the time -- his UM/UIM premiums have never decreased during the time that he's been insured with Allstate? A.ꞏ ꞏYep, not prepared to answer. DATED: January 29, 2020 BY THE COURT:

s/Scott T. Varholak United States Magistrate Judge