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Saacks v. Privilege Underwriters Reciprocal Exchange

United States District Court, E.D. Louisiana

February 2, 2017


         SECTION "L" (5)

          ORDER & REASONS

         Before the Court are three motions regarding the nature and extent that Plaintiffs' former counsel, Mr. Robert Harvey and Ms. Tamara Jacobson, may participate in this trial. R. 154, 157, 159. Plaintiffs, Mr. Harvey, and Ms. Jacobson have filed various objections to the motions. R. 164, 165, 166, 167. The Court has reviewed the parties' arguments and applicable law, and now issues this Order and Reasons.


         This case arises from a car accident that occurred on December 30, 2014, on North Causeway Boulevard in Metairie, Louisiana. According to Plaintiff Antoine Saacks, he was struck by Jonathan St. Pierre as the two drove along the causeway. R. 1-1 at 1. Mr. St. Pierre was insured by Progressive Security Insurance Company (“Progressive”), but his policy was capped at $50, 000. R. 1-1 at 1. Progressive paid the policy limits, but Mr. Saacks contends that $50, 000 is insufficient to compensate him and his wife for their losses. R. 1-1 at 1.

         At the time of the accident, Mr. Saacks carried underinsured motorist coverage with Privilege Underwriters Reciprocal Exchange (“Privilege”). Mr. Saacks sought to collect the balance of his damages from his uninsured/underinsured motorist (“UM”) policy, PURE Private Fleet Auto Policy Number PA041437901 (“the policy”). On December 15, 2015, Plaintiffs Antoine & Kim Saacks brought the instant action in the 24th Judicial District Court for the Parish of Jefferson. R. 1-1 at 1. Plaintiffs contend that Privilege wrongly failed to tender a fair sum or to fairly settle the Plaintiffs' claim within sixty days of receipt of Plaintiffs' medical documentation, as required by LSA-R.S. 22:1892 and LSA-R.S. 22:1973. R. 1-1 at 2. Plaintiffs seek the balance of their damages from the December 30, 2014, car accident, as well as monetary penalties provided under Louisiana law. R. 1-1 at 2.

         Privilege removed the suit to this Court on February 8, 2016. R. 1. Privilege timely Answers and denies Plaintiffs' allegations. R. 4 at 1-3. Privilege asserts a number of affirmative defenses, including exclusions to coverage provided in the policy. R. 4 at 3-6.

         Mr. Saacks was originally represented by Mr. Robert Harvey and Ms. Tamara Jacobson. After a period of time, Saacks discharged Harvey and Jacobson and hired his present counsel, Darlene Jacobs. Harvey and Jacobson filed an intervention in this matter seeking an attorney fee earned during their representation of Saacks.


         The motions currently before the Court address what role, if any, Plaintiffs' former counsel, Mr. Robert Harvey and Ms. Tamara Jacobson (“Intervenors”), may have in this trial. As background, Defendant explains that Intervenors handled Plaintiffs' UM claim before this suit was filed. They remained counsel of record in this case until December 27, 2016, when they filed a motion to withdraw. R. 73. The Court granted the motion on January 4, 2017 and on January 19, 2017, Mr. Harvey and Ms. Jacobson filed a motion to intervene, which the Court granted. While Mr. Harvey had been listed as a fact witness for some time, Plaintiffs recently designated him as an expert witness, who will testify that PURE acted in bad faith in handling Plaintiffs' UM claim. R. 154 at 1. Additionally, the Court has been informed that Mr. Harvey has filed a defamation claim against Defendant and its counsel in state court. Based on these facts, Defendant contends Mr. Harvey's testimony should be limited to that of a fact witness, any references to his state court lawsuit against Defendant must be excluded, and as a fact witness he should be sequestered and not allowed to participate in the trial. The Court will address each of Defendant's motions in turn.

         a. Defendant's Motion to Exclude or Limit Mr. Robert Harvey's Testimony (R. 154)

         Defendant argues that allowing Mr. Harvey to offer expert testimony would violate FRCP 26(a)(2)(B), and FRE 403, 701, 702, and his testimony must be limited to that of a fact witness. Further, Defendant contends that Mr. Harvey's status as a lien-intervenor does not entitle him to participate fully in trial, and seeks an order sequestering him in his role as a witness and limiting his participation as attorney to only what is necessary to “securing his lien for his contingency fee in this case.” R. 154 at 2.

         Defendant explains Mr. Harvey was listed as an attorney of record until January 4, 2017, and was not disclosed as an expert witness until long after the October 26, 2016 deadline for expert disclosures. R. 154 at 3. Further, Plaintiffs previously appointed another expert witness-Jim Schratz-who was to testify regarding insurance industry standards. R. 154 at 3-4. The parties scheduled Mr. Schratz's deposition, but Plaintiffs then removed him from the witness list, and asked that he be released from the deposition subpoena. Defendant agreed, provided “Plaintiff would not call Mr. Schratz or any other bad faith expert at trial.” R. 154 at 4. On December 19, 2016, Plaintiffs notified Defendant they intended to call Mr. Harvey but did not specifically indicate he would provide expert testimony. R. 154 at 4. On December 27, 2016, Mr. Harvey filed a motion to withdraw as counsel in this case, was deposed as a fact witness, then filed a defamation suit against Defense counsel and PURE in Orleans Parish Civil District Court. R. 154 at 5. On January 18, 2017, he filed a motion to intervene in this lawsuit. R. 154 at 5. Defendant contends that given his current role in the case, Mr. Harvey's participation should be limited to his role as a fact witness and lien-intervenor.

         Defendant cites five reasons to support its argument that Mr. Harvey's testimony should be limited to his knowledge as a fact witness. First, Defendant argues that Mr. Harvey is not a lay expert witness under Rule 701, as his purported testimony regarding insurance standards is not based on his personal perception. R. 154 at 6-7. Second, Defendant argues that Plaintiffs have not satisfied the requirements for Mr. Harvey to testify as a Rule 702 expert, as he has not submitted any of the information mandated by Federal Rule of Civil Procedure 26. R. 154 at 7-8. Third, Defendant argues that any purported testimony from Mr. Harvey regarding insurance industry practices fails to meet Daubert requirements. R. 154 at 9. Defendant argues that Mr. Harvey is not an insurance claims handler and does not have advanced knowledge, training, or experience in the insurance industry. R. 154 at 11-13. Defendant contends this testimony also fails to satisfy the reliability requirements of Daubert. Fourth, Defendant avers Mr. Harvey's personal bias against Defendant and its counsel disqualifies him as an expert witness under Rule 403. This alleged bias is based on Mr. Harvey's defamation lawsuit against Defendant in state court, and that as a lien-intervenor, he has a direct financial stake in the outcome of the litigation. R. 154 at 14-15.

         Defendant then argues that Mr. Harvey should be prohibited from acting as pro se counsel during trial, except in relation to his rights as a lien-intervenor. R. 154 at 16. Defendant cites Louisiana Rule of Professional Conduct 3.7, which bars an attorney who testifies as a witness from acting as an attorney in that trial. R. 154 at 16. Defendant recognizes that intervenors are treated as original parties with equal standing, but contends the petition for intervention establishes limited parameters for that action and the Court has discretion to impose further conditions on Intervenors. R. 154 at 17 (citing Wright & Miller, 7C Fed. Prac. & Proc. Civ. § 1922 (3d ed.); Beauregard, Inc. v. Sword Services L.L.C., 107 F.3d 351, 352 (5th Cir. 1997) (“It is undisputed that virtually any condition may be attached to a grant of permissive intervention.”)). Based on this authority, Defendant argues Mr. Harvey's participation at trial should be limited to his role as a fact witness and his right as the lien-intervenor. R. 154 at 19 (citing Beauregard, 107 F.3d at 354, n.9). Finally, Defendant explains it plans on stipulating to Mr. Harvey's lien rights, thereby eliminating the need for him to act on his own behalf in relation to the fee issue. R. 154 at 20.

         b. Plaintiffs' Response (R. 165)

         Plaintiffs oppose the motion and argue Mr. Harvey should be allowed to fully participate in trial and sequestration is unwarranted. R. 165 at 1-2. Plaintiffs contend Mr. Harvey is entitled to participate as an intervenor, testify regarding his interactions with Defendant's employees, and sit at counsel table after his testimony. R. 165 at 2. Further, Plaintiffs argue that Defendant has accused Mr. Saacks and Mr. Harvey of fraud, and therefore Mr. Harvey is entitled to defend himself against those ...

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