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American General Life Insurance Co. v. Russell

United States District Court, M.D. Louisiana

September 16, 2019




         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.)


         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. Haves' 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 ...

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