United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
matter comes before the Court on (i) Defendant's Motion
in Limine to Exclude Testimony of Plaintiff's Insurance
Expert Ray Padilla (ECF No. 111), and (ii) Defendant's
Motion in Limine to Limit Testimony of Plaintiff's Expert
Brian Shelley, M.D. (ECF No. 112). The Court, having
considered the motions, briefs, evidence, and applicable law,
will grant in part and deny in part the motions in limine as
Williamson was involved in a car collision on April 27, 2012,
and at the time, she was insured by Metropolitan Property and
Casualty Company (“Metropolitan”), which provided
uninsured/underinsured motorist (“UIM”) coverage.
After Plaintiff made a claim with Metropolitan for medical
payments coverage (“MedPay”), Metropolitan
required her to undergo an Independent Medical Examination
(“IME”) with Dr. Douglas Slaughter on October 18,
2013. Ms. Williamson reported to Dr. Slaughter that the day
after the car collision she began experiencing neck and low
back pains and that she had no back and neck pain symptoms
prior to the April 2012 collision. Dr. Slaughter reviewed
x-rays and a number of medical records, the first of which
was dated May 9, 2012. Dr. Slaughter noted that he reviewed
medical records from Plaintiff's visit to Dr. Emil Cheng
on April 30, 2013 at New Mexico Orthopaedics for neck, mid
back, and low back pain, in which Dr. Cheng had stated that
Plaintiff reported having a history of right sciatica, she
was involved in a motor vehicle accident in April 2012, she
noticed pain in May 2012, and she was not sure if her
symptoms were related to the accident.
completing the IME, Dr. Slaughter reported, as relevant here,
that Plaintiff had a pre-existing degenerative condition in
her cervical and lumbar spine, and she “has had an
exacerbation or a permanent aggravation of her cervical
degeneration and lumbar degeneration” from the motor
vehicle accident. Dr. Slaughter stated that, if Plaintiff has
done relatively well from her single set of facet blocks,
radiofrequency ablation may be beneficial to alleviate her
pain for much longer periods of time, and that she “may
be a good candidate for cervical facet blocks and
radiofrequency ablation on a periodic basis.” He noted
that Plaintiff might benefit from further lumbar facet blocks
and radiofrequency ablation for pain relief two to three
times per year based on symptom reduction, as well as similar
treatment in the cervical spine, two to three times per year
as needed for pain relief.
subsequently paid Plaintiff $10, 000 for medical payments
pursuant to the MedPay benefits in the Policy. Plaintiff
settled for $43, 000 her third-party claim against the
at-fault driver, who had an insurance policy limit of $50,
000. Subsequently, on July 14, 2015, Thomas Mescall, counsel
for Plaintiff, sent Metropolitan a letter notifying it of the
settlement of her third-party claim and offering to settle
her first party underinsured claim for $207, 000. In the
letter, Mr. Mescall stated that the $43, 000 settlement
barely covered Ms. Williamson's past medical expenses,
and thus, failed to compensate her for past pain and
suffering, future pain and suffering and future medical
payments. Counsel attached the IME Report and included copies
of past medical bills, asserting that the total amount for
past medical treatment was $37, 125. In explaining the
reasons behind the settlement offer, Mr. Mescall asserted
that Dr. Slaughter recommended future medical treatment of
cervical facet blocks and lumbar facet blocks, and Plaintiff
had a cervical facet block at a cost of $3, 893 and lumbar
facet blocks ranging in cost from $4, 132 to $9, 967.
Calculating two to three of each block per year for her life
expectancy of over 30 years, Mr. Mescall stated her future
medical costs would exceed the UIM policy limits.
Martinez, a Senior Claims Adjuster employed by Metropolitan,
was assigned to Plaintiff's claim and reviewed
Plaintiff's settlement demand letter, including the
medical bills from May 9, 2012 through December 29, 2014.
Metropolitan did not receive any additional medical records
or bills about treatments from Plaintiff or her counsel
during 2015. Metropolitan asserts it evaluated
Plaintiff's claim to be approximately $50, 000 to $56,
000, relying on the assumption that Plaintiff had ended
medical treatment in December 2014 and, therefore, it did not
consider any future medical costs in the evaluation. By
letter dated August 21, 2015, Mr. Martinez informed Mr.
Mescall: “As discussed in our conversation of
08/21/2015, we offer a settlement offer of $1, 000 for your
client's bodily injury claim, ” without further
written explanation justifying the amount. Metropolitan
contends that it was a reasonable settlement, because it paid
$10, 000 in MedPay to Plaintiff, and she received $43, 000
from the other driver.
disputes the reasonableness of the offer and filed suit
against Metropolitan for breach of its insurance duties.
Specifically, Plaintiff asserted claims for breach of
contract, breach of fiduciary duty, breach of the covenant of
good faith and fair dealing, violation of New Mexico's
Unfair Insurance Practices Act, and violation of the Unfair
Practices Act. During discovery, Metropolitan discovered past
medical records indicating that Plaintiff had back pain and
sciatica on and off for years before the accident.
Metropolitan submitted additional information to Dr.
Slaughter and asked him to prepare an affidavit.
January 19, 2016, Dr. Slaughter signed an affidavit stating
that in preparing his prior IME Report, he did not intend to
imply that Ms. Williamson “required” three
injections in either her cervical spine or lumbar spine per
year. He explained that his IME was based on information Ms.
Williamson provided him at the time; that she reported she
had no symptoms in her back or neck prior to the car
accident; and that his subsequent review of prior medical
records for Plaintiff suggests that she did in fact have a
long history of prior back and neck symptoms, dating at least
to 2004. He noted the records indicate she has had mechanical
symptoms in her low back with radiating pain in the right
lower extremity intermittently and a history of neck pain,
and that she had been treated with spinal injections in 2006
and 2011. Based upon his review of the additional
information, he now believes she does not warrant any further
treatment as a result of the April 2012 accident.
Dr. Brian M. Shelley's Report and Deposition
subsequently retained Dr. Brian M. Shelley primarily to rebut
Dr. Slaughter's affidavit. Dr. Shelley reviewed the IME
Report, Dr. Slaughter's Affidavit, the medical records
upon which Dr. Slaughter relied, and Dr. Cheng's April
30, 2013 medical record. Def.'s Ex. B, ECF No. 112-1 at 7
of 28. Dr. Shelley concluded that Plaintiff's medical
records from July 6, 2004 through November 29, 2011 do not
indicate that she received any spinal injections in 2011. He
opined that, contrary to Dr. Slaughter's contention in
his Affidavit, the records of prior care do not indicate that
she had any neck pain or chronic neck pain prior to the motor
vehicle crash. Dr. Shelley noted, however, that she reported
back pain as far back as 2004 and mentioned back pain only
once in her medical records from 2011. Dr. Shelley agreed
that Ms. Williamson had intermittent back pain for years, but
noted that because Dr. Slaughter had Dr. Cheng's report
of a history of sciatica, he had the information about back
pain at the time of the evaluation. Dr. Shelley stated that
Dr. Slaughter in his IME Report documented a physical exam
that was negative for sciatica, indicating that he did not
find any objective signs of sciatica on that date. Based on
the records Dr. Slaughter reviewed, Dr. Shelley opined in his
report that it is reasonable to conclude that Ms.
Williamson's low back pain is worse than it was before
the accident, and thus constitutes an aggravation.
See Def.'s Ex B, ECF No. 112-1 at 8 of 28.
Shelley's report contains all the facts and data he
considered, the opinions he would express, and the basis and
reasons for them. Dep. of Dr. Shelley 14:24-15:9, ECF No.
112-1. Dr. Shelley's role in this case is limited: Dr.
Slaughter rendered an opinion on causation, and Dr. Shelley
was asked to analyze Dr. Slaughter's responses and
different statements, including Dr. Slaughter's changed
opinion regarding aggravation of a preexisting condition.
See Id. 34:8-14, 76:5-77:17. Dr. Shelley admitted he
would want more information to give an opinion on whether the
accident of April 27, 2012 caused Plaintiff's symptoms
that she is complaining of today. See Id.
Ray Padilla's Report and Deposition Testimony
disclosed Ray Padilla, an insurance defense attorney, as an
expert to testify on the value of her claim for underinsured
benefits, to refute Metropolitan's valuation of only $50,
000 to $55, 000, and to explain what underinsurance is.
Pl.'s Mot. for Extension 1, ECF No. 57. Plaintiff
retained Mr. Padilla to testify that Metropolitan did not
make Ms. Williamson a reasonable settlement offer.
See Dep. of Ray Padilla 70:11-22, ECF No. 111-1.
Padilla has practiced law since 1975; from 1982 to 1997, he
worked for a private practice law firm in which 70-75% of his
work was representing insureds after an insurance company
hired him. See Dep. of Ray Padilla 8:16-22, 9:2-23,
10:12-20, ECF No. 111-1. Less than 5% of his practice
involved representing insurance companies in disputes with
their insureds. Id. 11:1-6. Since 1997, Mr. Padilla
worked in his own private practice in which he continued to
represent insureds. See Id. 11:7-17. Mr. Padilla
could not recall if he had ever represented an insurance
company being sued by an insured for UIM benefits.
Id. 12:4-8. Although he has represented insureds in
making claims for UIM, he has never had to sue an insurance
company for UIM benefits. Id. 12:9-14. Mr. Padilla
has only once served as an expert. Id. 13:3-10.
preparing his report, Mr. Padilla reviewed Dr.
Slaughter's IME Report, Metropolitan's letter
granting settlement consent for Plaintiff's bodily injury
claim against the tortfeasor, Plaintiff's settlement
demand letter to Metropolitan, Metropolitan's settlement
offer, the Complaint, the Answer, Plaintiff's first
motion for partial summary judgment (ECF. No. 9),
Metropolitan's response (ECF No. 118), and
Plaintiff's reply (ECF No. 30). See Def.'s
Ex. B, ECF No. 111-1 at 16-17 of 23. Mr. Padilla also relied
on New Mexico jury instructions and background information
verbally provided by Plaintiff's counsel. Id.
Mr. Padilla did not review any of Plaintiff's medical
records from before or after the accident, other than the IME
Report; and he did not review the insurance policy, the
claims file, Defendant's sur-reply concerning the motion
for summary judgment, or Dr. Slaughter's Affidavit.
See Dep. of Ray Padilla 21:9-25, 54:11-56:24,
61:22-25, 64:7-14, 70:2-10, ECF No. 111-1. Mr. Padilla had
two or three meetings with Plaintiff's counsel prior to
writing his report, id. 26:18-27:5, during which
they told him Ms. Williamson had a preexisting condition for
which she was asymptomatic for several years prior to the
accident, see id. 29:20-31:10, 39:3-6, 40:5-13.
Plaintiff's counsel told Mr. Padilla that the claims file
did not indicate any substantial investigation by the
insurance company, but Mr. Padilla did not examine the claims
file or any copies of documents in it. Id. 64:7-14.