In the Insurance Coverage and Insurance Bad Faith Case of Keten v. State Farm Fire & Cas. Co., Download Keten v. State Farm Fire and Casualty Co. (N.D. Ind. Case No. 2006.CV.341, Opinion and Order Filed March 29, 2010) PUBLIC ACCESS, also published as 2010 WL 1258198 (N.D. Ind. March 29, 2010)(Westlaw subscription required to access Westlaw), a Federal Court reviewed the earlier decision of a Magistrate Judge to exclude the testimony of an Insurance Expert Witness. The result was the same as the District Judge affirmed the Magistrate Judge's Order Excluding the Expert Testimony.
In that case, the Magistrate Judge found "that Plaintiffs did not have a substantial justification for their failure to meet the deadline [for "expert disclosure" which apparently included exchanging Expert Reports] in violation of Federal Rule of Civil Procedure 37(c)(1), and that the failure was harmful to Defendant." Keten v. State Farm Fire & Cas. Co., 2010 WL 1258198 at *6. "Not only were the expert disclosures deficient, the Plaintiffs' proffered excuses for delay were scheduling conflicts with the expert and a lack of funds. On these facts, the magistrate judge's order is not clearly erroneous and is not contrary to law; therefore, the order is affirmed." Id.
The lesson of this decision is clear for all parties to Insurance Cases: If you are going to retain Insurance Expert Witnesses, be sure to meet and talk with them and, above all, be sure to pay them. Failure to do these things will not excuse failure to meet deadlines set by Court Orders.
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