.... TWO MORE.
In a change-of-pace, Insurance Claims and Bad Faith Law Blog and Insurance Claims and Issues Weblog will carry consecutive posts addressing a single common theme: Court rulings on Expert Witness Testimony and Reports in recent Insurance Cases. For the previously developed rules of law and judicial decisions on these issues, see generally as to Liability Insurance Cases, volume 1 Dennis J. Wall, Litigation and Prevention of Insurer Bad Faith § 8:17 (West Publishing 3d ed. 2011; 2012 Supplement in process), and see generally as to all types of First-Party Insurance Cases, volume 2 id. § 12:18.
What Will be Done With Late-Filed Expert Witness Affidavits and Reports?
In the case of House of Clean, Inc. v. St. Paul Fire & Marine Insurance Co., 2011 WL 2118633 (D. Mass. May 27, 2011), Download House of Clean, Inc. v. St. Paul Fire & Marine Insurance Co. (D. Mass. Case No. 07.10839, Memorandum and Order Filed May 27, 2011) PUBLIC ACCESS, a Federal District Judge's solution was not to consider Plaintiff's late-filed Expert's Affidavit on Defendant's Motion for Summary Judgment. The Affidavit (or the Expert's Testimony live) would be considered at Trial in this Declaratory Judgment Action involving issues of Insurance Coverage for Pollution, and the Sudden and Accidental Exception, the District Judge in that case ruled. Id. at *12.
Parenthetically, the Online Docket of this Federal Case on PACER reflects that the parties settled the case, and the Court granted the parties' joint motion to dismiss because of the settlement, on August 16, 2011.
What Will be Done With Very Long Expert Witness Affidavits and Reports?
In some Insurance Cases, as in Curatolo v. Allstate Insurance Co., 2011 WL 2116459 (N.D. Ohio 2011), Download Curatolo v. Allstate Insurance Co. (N.D. Ohio Case No. 5.10CV607, Memorandum of Opinion and Order Filed May 27, 2011) PUBLIC ACCESS, the Court may not read Expert Witness Affidavits that are just too long and are not even referenced in pertinent part in the Motions and Memorandums which they are filed to support. In Curatolo, the Expert's Affidavit in question was 63 pages long. The Affidavit was offered in the context of a theft claim followed by a vehicle claim and then by a sewer backup claim, denial of all Coverage for all claims on various grounds, and a Complaint in Federal Court for alleged Breach of Contract, Declaratory Judgment, alleged Bad Faith, and alleged Intentional Infliction of Emotional Distress. Id. at *1.
The Federal Judge in that case ordered the Defendant as the proffering party to brief the issue(s) for which the Expert's Affidavit was proffered, if they want the Court to consider the Expert's Affidavit which they filed in support of their Motion for Summary Judgment on various grounds. See id. at *4 - *10.
Parenthetically, PACER relects that this case was dismissed with prejudice based on the parties' settlement agreement, on June 10, 2011.
To be continued ....
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