United States District Court, E.D. Louisiana
ANTOINE SAACKS, ET AL.
PRIVILEGE UNDERWRITERS RECIPROCAL EXCHANGE
ORDER & REASONS
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.
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.
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.
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.
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.
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
Defendant's Motion to Exclude or Limit Mr. Robert
Harvey's Testimony (R. 154)
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.
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.
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
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.
Plaintiffs' Response (R. 165)
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 ...