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Click here for the full text of this decision FACTS: Perry Hamburger was in a car accident with another car, caused by the other driver. He later suffered a herniated disc in his neck, which Hamburger claimed was caused by the accident, and for which he had surgery. The driver’s insurer, Old American Insurance Co., paid Hamburger $25,000 under the policy limits. Hamburger’s insurer, State Farm Mutual Automobile Insurance Co. paid him an additional $10,000 under the personal injury protection provision of his plan, but denied him any payment under the uninsured/underinsured motorist provision. Hamburger sued State Farm for breach of the UIM clause and for several extra-contractual clauses, including violations of the Texas Deceptive Trade Practices Act and Texas Insurance Code Art. 21.21. During discovery, Hamburger asked to take the depositions of the two State Farm representatives who handled the PIP and UIM claims. State Farm refused, so Hamburger filed a motion to compel. The district court denied the motion, and granted State Farm’s motion for summary judgment on the extra-contractual claims. The district court also denied Hamburger’s motion to reconsider. Nearly three months after a deadline imposed by the district court, Hamburger designated his expert witnesses on the cause of Hamburger’s herniated disc, but he did not submit expert reports. The district court granted State Farm’s motion to exclude the expert witnesses, and then denied Hamburger’s motion to reconsider. At trial, without expert testimony, the district court granted State Farm’s motion for judgment as a matter of law that the accident did not cause Hamburger’s injuries. Therefore, the jury was only allowed to consider compensation for Hamburger’s past and future pain and suffering related to injuries other than the herniated disc. The jury awarded Hamburger $50,000; however, the district court granted State Farm’s motion to offset that amount by the amounts already paid by State Farm and Old America. The district court entered a judgment for Hamburger for $15,000. Hamburger appeals the partial summary judgment, the exclusion of his expert witnesses, the judgment as a matter of law, and the judgment offsets. HOLDING: Affirmed in part; reversed and remanded in part. The court rules that the district court did not abuse its discretion in disallowing Hamburger to depose the two State Farm representatives. In order to impose liability on State Farm for violating the duty of good faith and fair dealing under the DTPA, Hamburger must show that State Farm knew or should have known that it was reasonably clear that Hamburger’s UIM claim was covered, but failed to act in good faith to effectual a prompt, fair and equitable settlement. The UIM provision allows payment in cases where the insured is “legally entitled to recover,” but Hamburger was not legally entitled to recover from State Farm until a jury established the extend of Hamburger’s damages attributable to the other driver. Nor is there evidence that State Farm knew that Hamburger’s claim was covered but did not attempt in good faith a fair settlement. Here, State Farm indicated that it did not find Hamburger’s claim to be undercompensated. This was based on Hamburger’s submission of nearly $19,000 in bills, combined with the $35,000 he was paid by Old American and the State Farm PIP coverage. The letter State Farm wrote to explain its decision reflects a bona fide dispute about State Farm’s liability for UIM benefits, the court finds, not a mere pretext for denying the claim. Furthermore, the evidence Hamburger sought to elicit from the representatives would not have disproved that a bona fide dispute existed about whether Hamburger had received adequate compensation. The court also rules that the district court did not abuse its discretion in excluding Hamburger’s expert witnesses. The court analyzes the district court’s decision under the four factors of Geiserman v. MacDonald, 893 F.2d 787 (5th Cir. 1990). Though Hamburger explains why he did not file the expert witness reports, he never explains why his designation of the experts was not timely. As for the second factor, the importance of the expert’s testimony, the court assumes that the testimony was essential to Hamburger’s claim, but the court adds that this factor cannot by itself override enforcement of local rules and scheduling orders, such as the one imposed here. The third factor concerns prejudice. State Farm would have been prejudiced since the expert was not timely designated and it would have had no reason to know that Hamburger intended to use the expert’s opinion on the issue of causation. The prejudice could not have been cured by a continuance, the fourth factor, when the first and third factors militate against permitting the testimony. Otherwise, failure to follow the rules would never result in exclusion, but only in a continuance. The court reverses the district court’s judgment as a matter of law that Hamburger cannot recover for pain and suffering related to the herniated disc. Hamburger was not required to present expert testimony on causation in order to avoid judgment as a matter of law; lay testimony would have been sufficient. The court cites several cases where lay testimony on causation was allowed when certain kinds of injuries are within areas of common experience; other cases involve injuries where expert testimony is required. The court rules that the explanation Hamburger offered of his herniated disc � 1. prior to the accident, he had never had any problems with his neck; 2. during the collision, his head went forward and snapped back against the headrest; 3. immediately after the collision, his neck felt stiff; and 4. over the next few months, the pain progressively worsened and began to spread to his shoulder and arm � could be assessed by a factfinder. Hamburger’s neck injury is similar to the injuries � a back injury or dislocated knee, for example � for which lay testimony on causation was acceptable. On the other hand, judgment as a matter of law that Hamburger was not allowed to recover his medical expenses was correct, as Hamburger did not present any evidence that his medical expenses were reasonable. The court also affirms the district court’s decision to offset the jury award with amounts previously paid by Old American and State Farm. A pretrial order alerted Hamburger to the fact that the State Farm would claim an offset, regardless of whether a jury awarded damages for medical expenses. OPINION: Lynn, J.; King, C.J., Dennis and Lynn, JJ. CONCURRENCE AND DISSENT: King, Chief Judge. The author concurs in all parts of the opinion except the portion dealing with lay testimony on causation. The author would dissent from this part of ruling, finding the testimony insufficient, though agreeing that the correct test was used and that he simply interprets the record differently. “I do not believe that the question of whether a car wreck could cause a herniated disc that does not manifest itself until weeks later is within”general experience and common sense’ such that a layperson can”determine, with reasonable probability, the causal relationship between the event and the condition.’”

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