United States District Court, W.D. Tennessee, Western Division
ORDER ON DEFENDANT'S MOTION TO EXCLUDE THE TESTIMONY AND RECORDS OF KENNETH CLENIN, D.C.
CHARMIANE G. CLAXTON, Magistrate Judge.
Before the Court is Defendant Massachusetts Mutual Life Insurance Company's Motion to Exclude the Testimony and Records of Kenneth Clenin, D.C. ("Dr. Clenin"). (Docket Entry "D.E." #45). The instant motion was referred to the United States Magistrate Judge for determination. (D.E. #46). On September 15, 2014, the Magistrate Judge held a hearing on the instant motion. For the reasons set forth herein, Dr. Clenin shall not be permitted to testify as an expert witness pursuant to Rule 702.
This case arises from Defendant's cancellation of coverage under Plaintiff's disability insurance policy, Number 8, 173, 1665 ("Policy"), which was issued in 2000. (Am. Compl. ¶¶ 1-24). Following the issuance of his Policy, Plaintiff, who was then employed as a financial systems consultant, ruptured a cervical disc-an injury that required surgery but ultimately did not resolve his symptoms. (Am. Compl. ¶¶ 8-13). On March 4, 2005, Plaintiff began to be treated by Dr. Clenin to manage his continued symptoms. (Am. Compl. ¶ 13; Clenin Deposition, Vol. I, at 11:13-16, filed at D.E. #49-1).
In 2009, Plaintiff alleges that Dr. Clenin, along with another physician, informed him that his job requirements, including frequent air travel, extended work hours, and the "position he had to hold his head" while working as a financial systems consultant "were bad for his condition and worsening his condition." (Am. Compl. ¶¶ 10-11, 14). Thus, Plaintiff, in consultation with his medical provider about "what type of job he could do, " "went back to school to become HVAC trained" and began this new job that "does not affect his neck" but earns a fraction of his prior salary. ( Id . ¶¶ 15-19). On or about March 19, 2010, Plaintiff made a claim under the Policy. (Answer ¶ 3). Initially, Defendant "began paying under the loss income portion of the policy" but has since "cancelled payment." ( Id . ¶¶ 20-21). Plaintiff asserts claims of breach of contract and bad faith failure to pay. ( Id . ¶¶ 25-32).
On August 11, 2010, Dr. Clenin provided medical records to Defendant as part of the claims process ("MassMutual Production"). (Clenin Dep., Vol. I, Exh. 15). After this case was filed, Plaintiff provided his Rule 26(a) Initial Disclosures listing Dr. Clenin as a treating chiropractor. (Plaintiff's Rule 26(a) Initial Disclosures, filed at D.E. #43-4). On December 5, 2013, Defendant subpoenaed "[a]ny and all" of Plaintiff's medical records from Dr. Clenin. (Clenin Dep., Vol. I, Exh. 28, filed at D.E. #42-4). On February 3, 2014, Dr. Clenin responded with sixty-four pages of documents ("February Production"). ( Id .) These documents did not include any records from Dr. Clenin's treatment of Plaintiff prior to March 24, 2010. ( See id .; Clenin Dep., Vol. I, Exh. 29, filed at D.E. #42-4). After Defendant questioned the completeness of the February Production, Dr. Clenin produced a second set of medical records containing fifty-seven pages of documents. ("April Production"). (Clenin Dep., Vol. I, Exh. 29). Though the April Production contained less pages than the February Production, the April Production contained notes not only from on and after March 24, 2010 but also notes dating back to March 2005. ( See id. )
On May 15, 2014, Dr. Clenin was deposed and brought with him a third set of medical records that he relied upon during the deposition ("May Production"). (Clenin Dep., Vol. I., Exhs. 13-18). Defendant alleges that, on or about June 13, 2014, in response to its request that he fully comply with the prior subpoena, Dr. Clenin produced a disc containing 164 pages of records ("June Production"). (Clenin Dep., Vol. II, filed at D.E. #43-2 at 71). On July 17, 2014, Dr. Clenin's deposition was completed. (Clenin Dep., Vol. II, filed at D.E. #49-2). On that date, Dr. Clenin produced eight pages of "travel cards" that Defendant alleges had not been previously been produced. (Clenin Dep., Vol. II., Exh. 30, filed at #43-2 at 59). Defendant alleges that, on July 17, 2014, the record custodian for Dr. Clenin's practice produced another set of records containing 491 pages ("July Production").
A. Failure to Disclose Dr. Clenin as Expert Witness
First, Defendant asserts that Plaintiff failed to disclose Dr. Clenin and his opinions pursuant to Rule 26(a)(2) of the Federal Rules of Civil Procedure, which states, in pertinent part, as follows:
(A) In General . In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.
(C) Witnesses Who Do Not Provide a Written Report . Unless otherwise stipulated or ordered by the court, if the witness is not required to provide a written report, this disclosure must state:
(I) the subject matter on which the witness is expected to present evidence under Federal Rule of ...