Alaska Employment Law

U. S. District Judge John Sedwick has resolved a number of in limine motions in an action by a policy holder against his auto insurer.  Sedwick held:

Accountant’s testimony:  Sedwick wrote:

the question framed by the motion and response is the permissible scope of testimony by an injured plaintiff’s accountant regarding plaintiff’s financial condition when the accountant has not been designated as an expert witness. The answer, of course, (which both parties recognize in their papers) is that the accountant may offer lay testimony, but not expert opinion testimony. Thus, Berlier may offer testimony about what he has personally observed in Montagne’s financial records. For example, Berlier might testify that prior to the accident Montagne’s business income was “X” and afterwards it was “Y.” By way of further example, Berlier may also testify as to how he calculated X and Y, and what information he used to do so. Berlier may not, however, offer an opinion as to what external factors caused Y to differ from X, nor may he offer an opinion as to what the income would be in future years.

Treating doctor’s testimony:  Sedwick held:

Safeco asks the court to preclude any testimony by plaintiff’s health care providers which is outside the scope of the treatment given through the last date of such treatment. Montagne opposes on the grounds that as “hybrid witnesses” treating physicians may “testify about the areas they would normally be expected to know about, including causation of injury and prognosis, without [providing] any retained expert reports.” The court agrees with Montagne.

Witness testimony disclosure:  Safeco contended that Montagne violated the part of the standard pre-trial order that required disclosure of witness testimony.  Sedwick agreed, but ordered only a re-do, given the interval before trial: 

Witnesses. On or before DECEMBER 15, 2008, each party will serve and file a final, revised witness list * * * As to each witness so listed (even though the witness may have been deposed), counsel will disclose the testimony expected to be elicited from that witness at trial. The disclosure will be specific and not general, the purpose being to avoid surprise and delay at trial and to give opposing counsel an adequate basis for developing cross-examination.

This section of the final pre-trial order is based on the court’s inherent power to control the proceedings before it and advances the goals reflected in Fed. R. Civ P. 1 directing district courts to apply the rules in a fashion which will “secure the just, speedy, and inexpensive determination of every action and proceeding.”

Most lawyers take the order to heart, and it is rare to see a motion of the sort now under consideration. Unfortunately, it is clear that with respect to a number of witnesses, Montagne’s lawyer has not done so. However, the exclusion of a witness’ testimony which is sought by Safeco is not the only sanction which might be imposed. The rule concerning failure to comply with pre-trial orders is Fed.R.Civ.P. 16(f)(1)(C). It specifically indicates that the court may “issue any just orders, including those authorized by Fed.R.Civ.P. 37(b)(2)(A)(ii)-(vii)….”

The court has considered the sanctions listed in Rule 37(b)(2)(A) as well as others that might be just in the circumstances. With respect to those witness descriptions which the court finds inadequate, a primary consideration in fashioning an appropriate sanction is that trial is not set to commence until February 2, 2009, and the final pre-trial conference is set for the afternoon of January 23, 2009, so there is time for Montagne to cure his failure to adequately describe the testimony he expects to elicit from the witnesses and time for Safeco to use the fuller descriptions in its trial preparations.

Montagne v. Safeco Ins. Co., 2009 WL 113776 (D.Alaska Jan. 19, 2009)

Jeffrey Barber and Stephen Sims of Anchorage represent plaintiff.  Timothy Lynch of Anchorage represents Safeco.