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Barcus v. The Phoenix Insurance Co.

United States District Court, D. Kansas

May 7, 2019

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

          MEMORANDUM AND ORDER

          HOLLY L. TEETER, UNITED STATES DISTRICT JUDGE.

         This action for recovery of benefits arises out of injuries allegedly sustained by Plaintiff William Lane Barcus in connection with a motor vehicle accident. Both Plaintiff and Defendant The Phoenix Insurance Co. designated experts to provide testimony regarding the nature and extent of Plaintiff's injuries and the value of the alleged damages. On January 25, 2019, following briefing on the parties' Daubert motions, the Court entered an order that, among other things, granted Defendant's motion to exclude portions of Plaintiff's proffered expert testimony. Doc. 106. Following that order, Plaintiff moved the Court for an order voluntarily dismissing his claims against Defendant without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2). Doc. 111. The case is now before the Court on that motion and, for the following reasons, the Court denies Plaintiff's request for dismissal.

         I. BACKGROUND

         Plaintiff initially filed this action in state court on July 27, 2017, seeking underinsured motorist benefits from his insurer, Defendant, in connection with a May 2013 motor vehicle accident. Plaintiff contends he suffered a traumatic brain injury in the accident, which resulted in vestibular symptoms and permanent cognitive deficits. Defendant disputes the nature and extent of Plaintiff's injuries and the value of Plaintiff's alleged damages.

         Following removal to federal court, Magistrate Judge Kenneth G. Gale set deadlines for, among other things, the disclosure of expert witnesses. Docs. 10, 54. Over the course of the litigation, the parties accordingly designated various experts to proffer testimony and conducted extensive expert discovery. On September 20, 2018, the Court entered a pretrial order establishing a September 28, 2018 deadline for motions to exclude expert testimony. Doc. 91. Plaintiff subsequently moved to exclude testimony from three of Defendant's designated experts: Dr. Maria Korth (one of Plaintiff's treating providers), Dr. Rachel Jensen (another treating provider), and Dr. Keith Kobes (a neuropsychologist). Docs. 92-94. Defendant likewise moved to exclude testimony from two of Plaintiff's experts: vocational expert Michael Dreiling and Dr. Julia Johnson, an educational neuropsychologist. Docs. 95-96.

         On January 25, 2019, the Court issued an order on the parties' Daubert motions. Doc. 106. Two of the Court's holdings in that order are particularly pertinent for purposes of its analysis of the pending motion to dismiss. First, the Court-although declining to exclude the entirety of Dr. Johnson's testimony-limited the scope of her proffered testimony. Id. at 8-10. Dr. Johnson's role in this case included reviewing Plaintiff's treatment records and confirming the diagnoses of Plaintiff's treating providers, including Dr. Korth. Id. at 8. But because Dr. Korth ultimately withdrew her previous diagnosis of post-concussive syndrome in February 2016-and because Dr. Johnson did not independently evaluate Plaintiff, thus basing her opinions regarding his cognitive deficits entirely on Plaintiff's records-the Court excluded Dr. Johnson from confirming any diagnosis past that February 2016 date. Id. at 9. The Court held:

Dr. Johnson may confirm Dr. Korth's diagnosis up to February 2016. However, past that point there is a treating provider-Dr. Korth herself-who personally evaluated Plaintiff and withdrew her diagnosis of post-concussive syndrome. Dr. Johnson therefore cannot confirm any diagnosis by Dr. Korth beyond the date of Dr. Korth's February 10, 2016 report because, simply put, there is no diagnosis to confirm at that point.

Id. The Court therefore declined to exclude the entirety of Dr. Johnson's testimony and, rather, excluded her from confirming the diagnosis past the date of Dr. Korth's February 2016 report. Id.

         Second, the Court granted Defendant's motion to exclude the entirety of Mr. Dreiling's proposed testimony. Id. at 7-8. In this case, Mr. Dreiling opined that the injuries allegedly sustained by Plaintiff in the accident affected Plaintiff's vocational potential and, accordingly, his future earning capacity. Id. at 7. Plaintiff therefore offered Mr. Dreiling's testimony to support his theory of damages. The Court ultimately excluded Mr. Dreiling's testimony based on admitted deviations from his clearly-articulated methodology. Id. at 7-8. In his deposition, Mr. Dreiling testified that, in conducting a vocational assessment (like the one performed on Plaintiff), the appropriate methodology includes considering records from the end of a patient's treatment. Id. at 7. However, as noted by the Court, in this case Mr. Dreiling did not consider records from Plaintiff's final visit with Dr. Korth on February 10, 2016, wherein she withdrew her previous diagnosis of post-concussive syndrome. Id. at 7-8. Because Mr. Dreiling did not consider Plaintiff's end-of-treatment records-and, further, because he provided no explanation for his failure to consider those records, which, notably, appeared to contradict his testimony regarding the extent of Plaintiff's alleged injuries-the Court found Mr. Dreiling's testimony was based on a flawed methodology and therefore unreliable. Id.

         Following the Court's order, on March 14, 2019, Plaintiff filed this motion to voluntarily dismiss his claims against Defendant without prejudice. Doc. 111. In his motion, Plaintiff contends that justice requires he be granted dismissal so that he may refile and cure the deficiencies in Mr. Dreiling's methodology. Id. Defendant opposes Plaintiff's request. Doc. 112. Pursuant to the Court's February 8, 2019 trial order, this case is set for a five-day jury trial to begin on June 10, 2019. Doc. 110.

         II. STANDARD

         As set forth above, Plaintiff moves to voluntarily dismiss his claims against Defendant under Rule 41. Pursuant to Rule 41, where the defendant has already filed an answer or a motion for summary judgment, and there is no stipulation of dismissal signed by all parties, “an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper.” Fed.R.Civ.P. 41(a). This rule “is designed primarily to prevent voluntary dismissals which unfairly affect the other side, and to permit the imposition of curative conditions.” Phillips USA, Inc. v. Allflex USA, Inc., 77 F.3d 354, 357 (10th Cir. 1996) (internal quotations omitted). Although “[t]hese matters fall within the district court's discretion, ” the court should ordinarily grant a motion for voluntary dismissal absent “legal prejudice” to the defendant. Brown v. Baeke, 413 F.3d 1121, 1123 (10th Cir. 2005).

         In evaluating “legal prejudice, ” the Tenth Circuit has articulated the following non-exhaustive list of relevant factors to consider: (1) the opposing party's effort and expense in preparing for trial, (2) excessive delay and lack of diligence on the part of the movant, (3) insufficient explanation of the need for a dismissal, and (4) the present stage of the litigation. Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir. 1997). The court should also consider any other relevant factors in making its determination. Id. “Each factor need not be resolved in favor of the moving party for dismissal to be appropriate, nor need each factor be resolved in favor of the opposing party for denial of the motion to be proper.” Id. Ultimately the court should “endeavor to insure substantial justice is accorded” to the parties. Id. To that end, the court considers the equities facing both the plaintiff and the defendant. Id.

         III. ...


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