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Barcus v. The Phoenix Insurance Co.

United States District Court, D. Kansas

April 16, 2018

WILLIAM LANE BARCUS, Plaintiff,
v.
THE PHOENIX INSURANCE CO., Defendant.

          MEMORANDUM & ORDER ON MOTION TO COMPEL

          HON. KENNETH G. GALE U.S. MAGISTRATE JUDGE

         In the present action, which was removed from the District Court of Miami County, Kansas, Plaintiff seeks the proceeds of uninsured motorist coverage from Defendant insurer. (Doc. 1-1.) Plaintiff also seeks attorney fees pursuant to K.S.A. §40-256.

         Now before the Court is Plaintiff's Motion to Compel, which primarily addresses the “discoverability of insurance files and the opinions of the experts the Defendant consulted before its denial.” (Doc. 24, at 1.) The discovery requests at issue will be discussed and addressed individually herein. Having reviewed the submissions of the parties, Plaintiff's motion is GRANTED in part and DENIED in part as more fully set forth below.

         FACTUAL BACKGROUND

         The underlying automobile accident occurred on May 30, 2013. Plaintiff alleges he suffered a brain injury as a result of the accident and claims damages in excess of $2, 000, 000. He recovered the policy limits of $100, 000 from the motorist. Thereafter, Plaintiff submitted a demand letter to Defendant on April 30, 2017. (Doc. 24-2.) A subsequent demand letter was submitted on July 10, 2017, for the available limits of Defendant's uninsured motorist policy. (Id.)

         During the claims process, Defendant contends that “Plaintiff refused to provide [it] with the information it needed to fully evaluate the nature and extent of his damages.” (Doc. 27, at 1.) For instance, according to Defendant, Plaintiff “refused to provide authorizations that would allow Defendant to collect pre- and post-incident medical records, and also refused to produce Plaintiff for independent medical examinations by Defendant's consulting experts.” (Id.)

         Defendant refers to the report of a treating physician whose neuro-psychological testing of Plaintiff

indicated variable effort during the evaluation. Moreover, cognitive testing results do not fit typical patterns seen with traumatic brain injury (e.g., Average Range story recall with Extremely Low Range list recall), and do not fit the expected pattern of recovery for concussion/mild traumatic brain injury, from which full cognitive recovery can be expected at this point. Though the reason for inconsistent effort is not clear, reported depressive symptoms do suggest a possible intervention point.

(Doc. 27-1.) Defendant denied the claim by letter dated July 26, 2017. (Doc. 24-2.)

         Plaintiff's motion initially encompassed Defendant's responses to Interrogatories Nos. 4, 6, 10, 11, 12, 19 (second, misnumbered) 19 and Requests for Production Nos. 1, 2, 10, 11, and 13. (See generally Doc. 24.) Since the filing of the present motion, the parties have resolved their differences regarding Interrogatories Nos. 4, 6, and 11and Requests for Production 11 and 13. This Order will thus address Interrogatories Nos. 10, 12, 19, 19, and Requests for Production Nos. 1, 2, and 10.

         ANALYSIS

         I. Legal Standards.

         Fed.R.Civ.P. 26(b) states that

[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at state in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

         As such, the requested information must be nonprivileged, relevant, and proportional to the needs of the case to be discoverable. Holick v. Burkhart, No. 16-1188-JTM-KGG, 2018 WL 372440, at *2 (D. Kan. Jan. 11, 2018).

         II. Privilege Log.

         Plaintiff argues that “Defendant did not produce a privilege log in the original responses and did not create one after it was discussed during the December 21, 2017 ‘meet and confer' phone call.” (Doc. 24, at 6.) Although Defendant should have included a privilege log with its original discovery responses, the parties seemed to have resolved this issue during their meet and confer session.

         Defendant responds that it provided the requested privilege log upon returning to the office after the New Year. (Doc. 27, at 4; Doc. 27-4.) Defendant subsequently provided a revised privilege log within a day after Plaintiff complained the log did not include Bates numbers. (Doc. 27, at 4; Doc. 27-5.) Considering Plaintiff's motion was filed less than a week after the meet and confer session - not to mention that it was the week including the Christmas holiday - the Court is satisfied that Defendant has complied with its duties as to the provision of a privilege log. This portion of Plaintiff's motion is DENIED.

         III. General Objections.

         Plaintiff complains of Defendant's inclusion of the language “to the extent” to qualify several of its objections. (Doc. 24, at 9.) Plaintiff argues that this constitutes a “general objection” which Courts in this ...


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