United States District Court, D. Kansas
MEMORANDUM AND ORDER
L. TEETER, UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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
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.
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.
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.
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).
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.