This is a dispute regarding uninsured motorist (“UIM”) coverage. Perez was a passenger in a car accident on April 18, 2018, and sought coverage for past and future medical expenses arising from this accident under an Allstate insurance policy. Perez intended to rely on the expert opinion of Dr. David Badger at trial.
The March 2022 report summarized Perez’s medical treatment after the accident, her current symptoms, notes from the in-person examination, and states four diagnoses, with a treatment plan and estimated cumulative cost. Badger also stated, “All diagnoses listed above are due to the motor vehicle accident of 04/28/2018 on a more probable than not basis.”
The June 2024 report reiterates Perez’s medical treatments since the accident and ends with Badger discussing specific questions, including whether Perez’s current symptoms relate to a preexisting condition, whether Perez suffered permanent injury, and whether and to what extent Perez will need future treatment.
Perez then attempted to deliver a third “report” to Allstate in the form of a letter attached to an email on November 22, 2024, but the email and attachments were not received by Allstate until January 14, 2025. Allstate moved to exclude portions of Badger’s opinion.
Orthopedic Surgery Expert Witness
David Badger is a board-certified orthopedic surgeon with over thirty-five years’ experience, including treating trauma-related injuries from motor vehicle accidents and a concentration in sports medicine. He has performed over ten thousand rotator cuff surgeries over the course of his thirty-five year career, and has provided expert medical opinion testimony on thirteen previous occasions in other Superior Court cases in Washington.
Discussion by the Court
Allstate sought to exclude multiple portions of Badger’s opinion. The Court will address each argument in turn.
Badger May Testify About Perez’s Headaches
Allstate avers that Badger’s opinion diagnosing Perez with “posttraumatic cervicogenic pain with headaches” should be excluded because Badger is not qualified, and his opinions are not reliable or relevant.
Badger identified various examples in his career when he diagnosed or was exposed to patients with cervicogenic headaches. The evidence showed that Badger did not just “believe he can diagnose” cervicogenic headaches, but that he has done so in his practice.
While Allstate’s arguments that Badger has not received specialized training or is unaware of certain diagnostic criteria are areas ripe for cross-examination, the Court held that Allstate has not shown that Badger is unqualified to diagnose cervicogenic headaches such that his testimony is inadmissible.
Allstate also pointed to conflicting evidence to undermine Badger’s diagnosis, which is proper for cross-examination but does not make Badger’s testimony inadmissible.
Lastly, Allstate argued that Badger “provided no information about how he reached [this diagnoses] or what information he relied upon to determine that she had an impaction injury to her greater occipital nerve at the base of her skull.” However, Badger can “expand or explain information contained in his report during oral testimony.” Thus, while any new opinions would be improper, the Court held that Badger may connect his diagnoses with the facts and assessments provided in his report.
Badger May Testify About Perez’s Shoulder
Allstate argued that Badger’s opinion on Perez’s shoulder pain and diagnosis of a right rotator cuff tear should be excluded because it lacks corroborating evidence. Like Allstate’s argument about the reliability of Badger’s opinion on Perez’s headaches, the Court held that the lack of shoulder imaging, other doctors’ corroboration, or fulsome explanation connecting the injury and accident is appropriate for cross-examination, but did not go to admissibility.
Badger May Testify About Perez’s Pre-Existing Conditions
Next, Allstate asserted that Badger cannot opine on Perez’s past medical conditions because he did not review any medical records from before the 2018 accident.
But Badger’s report included a section entitled “Past Medical History” indicating he obtained some information regarding Perez’s past medical conditions and history. There is some basis for Badger’s opinion. The Court held that whether more reliable or conflicting evidence on any pre-existing conditions exists is a matter appropriate for cross-examination or Allstate’s case-in-chief.
The Court Limits Badger’s Testimony on the Permanency of Perez’s Injuries
Badger’s March 2022 report did not state any opinions regarding the permanency of Perez’s injuries or pain. The June 2024 report stated Perez “has not undergone sufficient treatment to determine whether she has permanent injury.”
Badger’s deposition testimony reiterated this opinion. But during Badger’s deposition, Perez’s counsel attempted to obtain testimony about her ongoing pain and symptoms. Perez then attempted to submit an untimely third expert report in the form of a November 22, 2024 letter stating
“However, even if she were to undergo some or all of the recommended treatments she will still have some degree of residual symptoms and limitations from her collision related injuries for the remainder of her life. This is on a more probable than not basis, to a reasonable degree of medical certainty.”
Perez’s efforts to add a new opinion about the permanency of Perez’s injuries to Badger’s report failed when the deposition testimony went beyond, and conflicted, with Badger’s report. The Court held that Badger’s only properly disclosed opinion on the permanency of Perez’s injuries is that he could not opine on the topic.
Second, the November 2024 letter is untimely, whether sent on November 22, 2024 or January 14, 2025. The deadline to disclose expert reports was July 8, 2024. Perez’s argument that the November 2024 letter was timely because it was delivered on the deadline to complete fact discovery improperly ignores the July 2024 deadline for expert reports. The Court held that Perez did not provide any reason why this untimely disclosure should be accepted.
Badger May Testify Regarding His Opinion on Perez’s Future Treatment
Lastly, Allstate argued that Badger’s opinions on Perez’s future treatment were too speculative. Allstate pointed to the lack of imaging, the factors that could impact future treatment, and various other reasons this opinion is uncertain. Again, the Court held that these topics are appropriate for cross-examination and/or rebuttal testimony but did not warrant exclusion.
Held
The Court granted in part and denied in part Allstate’s motion to exclude portions of Dr. David Badger’s testimony.
The Court held that Badger can only testify about his opinions on the permanency of Perez’s injuries that were disclosed in the March and June 2024 reports; any opinion outside those bounds is excluded. The remainder of Allstate’s arguments are denied.
Key Takeaways:
- While any new opinions would be improper, Badger may connect his diagnoses with the facts and assessments provided in his report.
- An expert cannot salvage a deficient report by supplementing it with later deposition testimony.
Case Details:
| Case Caption: | Perez V. Allstate Fire And Casualty Insurance Company |
| Docket Number: | 2:23cv681 |
| Court Name: | United States District Court, Washington Western |
| Order Date: | February 25, 2025 |
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