Am. Gen. Life Ins. Co. v. Russell

AMERICAN GENERAL LIFE INSURANCE COMPANY v. NICHOLAS RUSSELL, ET AL

CIVIL ACTION NO. 16-851-JWD-RLB

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

September 16, 2019

RULING ON MOTION IN LIMINE AND TO EXCLUDE TESTIMONY OF BRUCE BACON

This matter comes before the Court on the motion of codefendants in interpleader Nicholas Russell and Michelle DiBenedetto ("Children") to exclude the testimony of Bruce Bacon, rebuttal expert retained by codefendant in interpleader Beryl Franklin ("Franklin"). (Doc. 89.)¹ The motion is opposed. (Doc. 90.) For the reasons which follow, the motion is denied.

I. BACKGROUND

This matter arises out of a dispute over annuity benefits due under a deferred annuity contract (contract VA 297190) issued by plaintiff American General Life Insurance Company ("Plaintiff" of "AGLIC") to Robert W. Russell ("R. Russell") on October 21, 2010. (Doc. 1, at 2-3.) The dispute centers on the efficacy of a power of attorney (POA) which arguably authorized the change of beneficiaries from the Children to Franklin. On March 27, 2016, R. Russell died. (Doc. 1 at 4.)

Because of the disagreement over the proper beneficiaries to whom the annuity proceeds are owed, AGLIC filed the current Complaint for Interpleader Relief naming as defendants the Children and Franklin. (Doc. 1.) The Children contend that the effort to change the beneficiary"was part of a complex plan to divest the Children of their entire inheritance..." (Doc. 78 at 1.) Furthermore, they urge that the POA which authorized and directed AGLIC to change the beneficiary to Franklin was executed by R. Russell at a time when he was "dying in hospice from end-stage liver disease and inflicted with advanced stage hepatic encephalopathy" (Doc. 77 at 1), rendering him incompetent and legally incapable of executing the POA. Therefore, they argue the POA and the purported change of beneficiary is ineffective. Franklin disputes these allegations and specifically maintains that R. Russell was competent to give the POA and, at the time he did, "was awake, speaking with his attorney, and consciously made the choice to sign the Power of Attorney." (Doc. 76-5 at 1.)

II. SUMMARY OF PARTIES' ARGUMENTS

In a previous ruling, the Court denied a Daubert challenge to the Children's expert Dr. Perry Hookman ("Hookman") but permitted Franklin to hire an expert to rebut Hookman. Dr. Bruce Bacon ("Bacon") was chosen by Franklin to provide the rebuttal testimony. (Doc. 86-5.) The Children do not question Bacon's credentials and, indeed, it appears that he is a highly qualified gastroenterologist on the faculty of St. Louis University School of Medicine. (Doc. 90 at 2-3.) Rather, the Children file the present motion seeking to exclude Bacon from testifying on the following grounds:

1. Bacon "failed to either state his complete opinions or give reasons and data to support his opinions." (Doc 86-1 at 3.);

2. "Bacon's conclusion about Robert Russell's mental capacity is irrelevant because it is duplicative of Mr. Owens and Dr. Hayes' testimonies and should not be allowed." (Id. at 9.)

3. Bacon's "proposed testimony will not help the trier of fact because his testimony is needlessly cumulative and a waste of time." (Id. at 4)

4. Bacon "limited his testimony to what Marvin Owen, a nonphysician, saw" and therefore, the Children "are faced with trial by ambush". (Id. at 5.)

5. Bacon's opinion regarding the credibility of witness Marvin Owen is improper and inadmissible. (Id. at 10.)

6. Bacon "failed to review Russell's medical records prior to March 8, 2016, even though he had access to them within a reasonable time to be included in his report." (Id. at 4.) Although "Bacon was provided with Robert Russell's medical records dating back to January 2016, list of medications that Mr. Russell was under on March 12, 2016, and all of the depositions from the witnesses who are testifying to Mr. Russell's mental state...", Bacon "failed to include all of the information and records that were provided by counsel when he gave his opinions." (Id. at 6.)

7. Bacon "failed to consider the psychotropic medications administered to Russell and did not consider the diagnosis of Russell's treating physicians..." (Id.)

Franklin responds to these arguments as follows:

1. Bacon's failure to list the medical records was an oversight because of the way the documents were packaged." (Doc. 90 at 3 (citing Bacon Dep., Doc 86-3 at 91:16-25).) "The reason the medical records were not listed separately is because one version of Dr. Hookman's expert report, the version provided to Dr. Bacon by undersigned counsel, contained 333 pages of medical records embedded at the end of the report." (Id.) Franklin states that "on April 15, 2019, [the Children] were provided exact copies of all documents Dr. Bacon considered in writing his report, including the version of Dr. Hookman's report that contained the embedded medical records." (Id. at 4.)

2. Bacon's opinion is not duplicative nor is it irrelevant since it does precisely what it was intended to do: "directly contradict[] Dr. Hookman's claim that the decedent was incompetent insofar as his conclusion suggests it is possible to render such a determination based on the medical records. Notably, Dr. Bacon did not conclude that Robert Russell had capacity as alleged by movants. He merely stated that the best evidence would have to be eyewitnesses because the medical records are insufficient." (Id. at 5.)

3. Bacon's testimony is not cumulative or a waste of time because his opinion is "from his perspective as an expert on liver disease." (Id.)

4. While not addressing the Children's fourth argument directly, Franklin points to medical records and other items considered by Bacon other than the testimony of Marvin Owen. (Id. at 3-5.)

5. Franklin fails to address the Children's fifth argument: that Bacon is impermissibly giving opinion testimony regarding the credibility of a witness, Marvin Owen.

6. Similar to his argument on items 1 and 3 above, Franklin points to Bacon's report and embedded attachments and deposition testimony to assure the Court that Bacon reviewed Russell's medical records and the reports of the other physicians. (Id. at 3-5.)

7. Bacon did not testify regarding medications because he was limited to rebutting the testimony of Dr. Hookman and "Dr. Hookman did not address how any medications might have affected the Decedent's executive function in his report either. As a rebuttal expert, Dr. Bacon can only refute items contained within Dr. Hookman's report. Thus, neither expert should be allowed to testify about the Decedent's medications. (Id. at 4.)

III. STANDARD

Pursuant to Rule 702, "a witness who is qualified as an expert by knowledge, skill, experience, or education may testify in the form of an opinion or otherwise" if its preconditions are met. FED. R. EVID. 702. Rule 702, however, does not render all expert testimony admissible. United States v Scavo, 593 F.2d 837, 844 (8th Cir. 1979). Rather, beyond being subject to the Rule's helpfulness requirement, expert testimony can still be excluded per Rule 403. FED. R. EVID. 403; United States v Green, 548 F.2d 1261, 1270 (6th Cir. 1977). Entirely discretionary, Rule 403 allows a court to "exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence."

The Children's motion is a Daubert challenge based on Bacon's alleged failure to use an accepted methodology and his opinion's alleged lack of an adequate factual foundation. Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). When Daubert is invoked, a district court may, but is not required, to hold a hearing at which the proffered opinion may be challenged. Carlson v. Bioremedi Therapeutic Sys., Inc., 822 F.3d 194, 201 (5th Cir. 2016) (citing United States v. John, 597 F.3d 263, 274-75 (5th Cir. 2010)). However, when no hearing is held, "a district court must still perform its gatekeeping function by performing some type of Daubert inquiry." Id. (citations omitted). "At a minimum, a districtcourt must create a record of its Daubert inquiry and 'articulate its basis for admitting expert testimony.'" Id. (quoting Rodriquez v. Riddell Sports, Inc., 242F.3d 567, 581 (5th Cir. 2001)).

The role of the trial court is to serve as the gatekeeper for expert testimony by making the determination of whether the expert opinion is reliable. As the Fifth Circuit has held:

[W]hen expert testimony is offered, the trial judge must perform a screening function to ensure that the expert's opinion is reliable and relevant to the facts at issue in the case. . . . Daubert went on to make "general observations" intended to guide a district court's evaluation of scientific evidence. The nonexclusive list includes "whether [a theory or technique] can be (and has been) tested," whether it "has been subjected to peer review and publication," the "known or potential rate of error," and the "existence and maintenance of standards controlling the technique's operation," as well as "general acceptance." . . . The Court summarized:

The inquiry envisioned by Rule 702 is, we emphasize, a flexible one. Its overarching subject is the scientific validity and thus the evidentiary relevance and reliability-of the principles that underlie a proposed submission. The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.

Watkins v. Telsmith, Inc., 121 F.3d 984, 988-89 (5th Cir. 1997) (internal citations omitted).

The cases following Daubert have expanded the factors and explained the listing is neither all-encompassing nor is every factor required in every case. See, e.g., Gen. Elec. Co. v. Joiner, 522 U.S. 136, 143 (1997); Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004). Indeed, courts may look...