Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01143-JLK

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-K-1143 (CBS)

DOLLY LAU, Plaintiff, vs. ALLSTATE INSURANCE COMPANY, Defendant.

DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR SANCTIONS RE: POST-LITIGATION BAD FAITH WITH RECITATION OF LEGAL AUTHORITY

Defendant, Allstate Insurance Company (Allstate), through its attorneys, Walberg, Dagner & Tucker, P.C., submits the following Response to Plaintiff's Motion for Sanctions. STATEMENT OF FACTS On February 21, 2006, Plaintiff filed a Motion for Sanctions. In support of the sanctions requested by Plaintiff, she alleges that (1) undersigned counsel improperly made reference in her opening statement to Plaintiff's vehicle moving at the time of the accident, (2) Dr. Hammernik's opinion that Plaintiff's vehicle was moving at the point of impact contaminated the opinions of Allstate's other expert witnesses, and (2) Allstate did not comply with F.R.C.P. Rule 26 with regard to its expert disclosures. Prior to trial, the parties stipulated that Plaintiff's vehicle was stopped at the time of the accident. Allstate's decision to stipulate to this fact was based on the police officer's report, which stated that Plaintiff's vehicle was stopped. Subsequently, Allstate employed Dr. Jubel Hammernik,

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an engineer, to conduct an accident reconstruction. Dr. Hammernik's opinion contradicted the police report and concluded that Plaintiff's vehicle was slowly moving at the time of impact. Prior to any evidence being presented to the jury in the case, Allstate was instructed that none of its witnesses could testify that Plaintiff's car was moving at the time of impact. None of Allstate's witnesses testified as to whether Plaintiff's car was moving or stopped at the time of impact. However, in opening statement, defense counsel did say that Plaintiff's vehicle was moving at the point of impact. STATEMENT OF THE ISSUES 1. Whether Allstate is subject to sanctions because defense counsel stated that

Plaintiff's vehicle was moving at the point of impact during opening statement. 2. Whether Dr. Hammernik's opinion that Plaintiff's vehicle was moving at the

point of impact contaminated the opinions of Allstate's other expert witnesses. 3. Whether Allstate complied with F.R.C.P. 26(a)(2) in its disclosure of accident

reconstruction expert Dr. Jubel Hammernik. ARGUMENT 1. Allstate should not be subject to sanctions because defense counsel stated in

opening statement that Plaintiff's vehicle was moving at the point of impact. Opening statement is not evidence and the jury was instructed accordingly. The applicable jury instruction stated, Statements and arguments by lawyers are not evidence. The lawyers are not witnesses. What they say in their opening statements, closing arguments, and at other times is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from the way the lawyers have stated them, your memory of the facts controls. -2-

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Plaintiff's attorney did not object during opening statement when defense counsel made reference to Plaintiff's vehicle moving at the point of impact. Allstate did not present any evidence at trial that was contrary to the parties' stipulation that Plaintiff's vehicle was moving at the point of impact. Any statement made by defense counsel during her opening statement that was contrary to the evidence was to be ignored by the jury. It is appropriate to assume that the jury followed the instructions of the Court, and disregarded statements made by defense counsel in her opening that were contrary to the evidence presented at trial. Plaintiff asserts that Allstate should be sanctioned pursuant to F.R.C.P. Rule 11, which states, in pertinent part: (b) Representations to Court. By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, (1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; (2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; (3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. (c) Sanctions. If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that -3-

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have violated subdivision (b) or are responsible for the violation. Plaintiff has not alleged any facts which warrant the imposition of sanctions under F.R.C.P. 11. Allstate did not confuse the jury or disobey this Court's instructions. Allstate did not present any evidence contradicting any of the stipulations made by the parties. There was no conduct by Allstate which warrants sanctions being imposed pursuant to F.R.C.P. 11. 2. Whether Dr. Hammernik's opinion that Plaintiff's vehicle was moving at the

point of impact contaminated the opinions of Allstate's other expert witnesses. Dr. Hammernik evaluated the forces to which Plaintiff was subjected at the time of the accident. Although he concluded that Plaintiff's vehicle was moving slowly at the point of impact, such conclusion had no effect on his opinions concerning the change in velocity experienced by Plaintiff's vehicle during the accident. Dr. Hammernik testified that the driver of the Nissan experienced minimal body kinematics in the accident, and, with proper seatbelt usage, would not have made any significant contact with the vehicle interior. Although, based on his accident reconstruction, Dr. Hammernik determined that Plaintiff's vehicle was moving at the time it first contacted the Ford Torino, this fact did not affect Dr. Hammernik's conclusions regarding the forces involved in the accident. Importantly, Dr. Hammernik did not testify at trial that Plaintiff's vehicle was either moving or stopped at the point of impact. Plaintiff advances the theory that Allstate's other experts relied on Dr. Hammernik's report and, therefore, all of Allstate's experts' conclusions were unsupported by the stipulated facts. Plaintiff's argument that Allstate's entire case falls apart because one of Allstate's expert's opinions is inconsistent with an insignificant fact to which the parties stipulated, is without merit. One of Allstate's other experts, Anne Hazelton, is a medical doctor who physically examined Plaintiff, -4-

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reviewed Plaintiff's voluminous medical records, and came to her own independent conclusions regarding Plaintiff's alleged injuries and damages. Allstate's other expert, Garth Allen, is a professor of insurance who thoroughly reviewed the claims files and the witnesses' depositions, and came to his own independent conclusions regarding the bad faith claims handling issues in this case. It is preposterous for Plaintiff to contend that these experts' opinions are somehow wholly without merit simply because they reviewed Dr. Hammernik's report as part of their analysis, and Dr. Hammernik's report contains an opinion contradictory to an insignificant stipulated fact in this case. More importantly, Dr. Hazelton's and Mr. Allen's testimony do not contradict the parties' stipulations. 3. Allstate's Expert Disclosures Were in Compliance with F.R.C.P. 26(a)(2).

Plaintiff argues Allstate did not comply with the disclosure requirements of F.R.C.P. 26(a)(2) with respect to Allstate's expert, Dr. Jubal Hammernik. F.R.C.P. 26(a)(2) governs the disclosure of expert testimony and provides: [w]ith respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years. Allstate submitted its expert disclosures on December 28, 2004. Allstate disclosed Dr. Hammernik at that time. Along with its disclosures, Allstate submitted a copy of Dr. Hammernik's -5-

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report, his curriculum vitae, fee schedule, and a listing of his deposition and trial testimony. For the first time, after Dr. Hammernik testified at trial on direct, Plaintiff requested a copy of his file. Allstate produced Dr. Hammernik's entire file for Plaintiff at that time; Plaintiff had an over night break from the trial proceedings to review it. Plaintiff never asked to review Dr. Hammernik's file at any time prior to trial. Plaintiff now argues that the complete file was not disclosed as part of Allstate's expert disclosures and, therefore, she is entitled to sanctions. Allstate is not required under F.R.C.P. Rule 26(a)(2) to disclose a complete copy of its experts' files. Allstate disclosed what was required under the rule, nothing more, nothing less. Plaintiff first complains that e-mails between the office of defense counsel and Dr. Hammernik were not disclosed. These e-mails were not relied upon or considered by Dr. Hammernik in forming his opinions. Although all correspondence between defense counsel and Allstate's experts is discoverable, there is no requirement that Allstate must disclose this information. Plaintiff additionally argues that computer printouts which contained scenarios run by Dr. Hammernik were not disclosed. This information is not required to be disclosed if it was not part of the data used by Dr. Hammernik in forming his opinions. The calculations Plaintiff found in Dr. Hammernik's file were not used as a basis for his opinions in this case. If they had been used in forming his opinions, they would have been disclosed. Plaintiff never requested Dr. Hammernik's file. On the night before Plaintiff cross-examined Dr. Hammernik, she requested the file which was produced per her request. After the fact, Plaintiff complains that the file contained information which Plaintiff could have used as a the basis for a motion to exclude the expert. If Plaintiff's attorney did not adequately prepare for cross examination -6-

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of Allstate's experts, she cannot come back after the fact and blame Allstate for her lack of preparation. If requested, Allstate would have produced a complete copy of Dr. Hammernik's file at any time subsequent to submitting its expert disclosures in December of 2004. However, Plaintiff never asked for a copy of the file. Allstate disclosed what it was required to disclose in accordance with the Federal Rule, and cannot be expected to do Plaintiff's attorney's job for him. F.R.C.P. Rule 26(a)(2) does not require parties to produce a complete copy of their expert's files. The file is discoverable, but the Rule does not require its disclosure. Therefore, Plaintiff is not entitled to sanctions. CONCLUSION Allstate did not engage in any post-litigation bad faith conduct and Plaintiff is not entitled to any sanctions. WHEREFORE, Allstate requests this Court to enter an Order denying Plaintiff's Motion for Sanctions Re: Post-Litigation Bad-Faith. DATED: July 21, 2004 Respectfully submitted, WALBERG, DAGNER & TUCKER, P.C.

/s/ Deana R. Dagner By: Deana R. Dagner Walberg, Dagner & Tucker, P.C. 7400 E Caley Ave Suite 300 Centennial, CO 80111-6714 303-694-9300 ofc 303-694-9370 fax [email protected] Attorneys for Defendant Allstate -7-

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CERTIFICATE OF MAILING I hereby certify that a true copy of the foregoing DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR SANCTIONS RE: POST-LITIGATION BAD FAITH WITH RECITATION OF LEGAL AUTHORITY was placed in the U.S. Mail, with postage prepaid, on July 21, 2004, copies addressed to: Pete Cordova, Esq. P.O. Box 1124 1604 H. Street Salida, CO 81201 Clerk of the Court United States District Court District of Colorado Alfred A. Arraj United States Courthouse 901 19th Street, Room A105 Denver, CO 80294-3589

/s/ Deana R. Dagner Deana R. Dagner

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