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Feb. 24, 2026 Get Citation Alerts Download PDF Add Note

Alexa Marra v. Owners Insurance Company, a/k/a Auto-Owners Insurance Company

District Court, D. Colorado

• Citations: None known
• Docket Number: 1:24-cv-01547

• Precedential Status: Unknown Status

• Opinion

• Authorities (36)

• Cited By (0)

• Summaries (0)

• Similar Cases (37)

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Trial Court Document

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Nina Y. Wang

Civil Action No. 24-cv-01547-NYW-MDB

ALEXA MARRA,

Plaintiff,                                                           

v.

OWNERS INSURANCE COMPANY, a/k/a AUTO-OWNERS INSURANCE COMPANY,

Defendant.                                                           

            MEMORANDUM OPINION AND ORDER                             

This  matter  is  before  the  Court  on Defendant  Owners  Insurance  Company’s 

Opposed Motion to Limit and/or Exclude Expert Testimony Pursuant to Fed. R. Civ. P.
26(a)(2) and F.R.E. 702 (the “Motion to Exclude”), [Doc. 43], and Defendant Owners
Insurance Company’s Motion for Partial Summary Judgment on Plaintiff’s Second and
Third Claims for Relief Pursuant to Fed. R. Civ. P. 56(a) (the “Motion for Partial Summary
Judgment”), [Doc. 46]. The Court has reviewed the Motions and concludes that oral
argument would not materially assist in their resolution. For the reasons set forth below,
the Motion to Exclude is GRANTED in part and DENIED in part and the Motion for Partial
Summary Judgment is DENIED.

BACKGROUND

This case arises out of a motor vehicle collision and subsequent claim for
underinsured motorist (“UIM”) benefits. [Doc. 3 at ¶¶ 6–8, 15, 24, 39]. At all relevant
times, Plaintiff Alexa Marra (“Plaintiff” or “Ms. Marra”) was insured through an insurance
policy issued by Defendant Owners Insurance Company (“Defendant” or “Owners”). [Id.
at ¶ 4]. After Ms. Marra was injured in a traffic collision for which she was not at fault, she
submitted a UIM claim to Owners. [Id. at ¶¶ 8, 15]. Owners denied the claim on the basis
that UIM benefits were not owed under Ms. Marra’s policy. [Id. at ¶¶ 24, 45].

Ms. Marra subsequently sued Owners, asserting one breach of contract claim, one

claim of unreasonable delay or denial of insurance benefits under Colo. Rev. Stat. §§ 10 -
3-1115 and -1116 (or “statutory bad faith”), and one claim of common law bad faith. [Id.
at 10–11]. Owners now moves for summary judgment in its favor on Ms. Marra’s bad
faith claims. See [Doc. 46]. Owners also moves to exclude the testimony of several of
Plaintiff’s expert witnesses. See [Doc. 43].

I. Motion for Summary Judgment

A. Legal Standard

Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). “A dispute is genuine if there is sufficient evidence so that a rational

trier of fact could resolve the issue either way. A fact is material if under the substantive
law it is essential to the proper disposition of the claim.” Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1194 (10th Cir. 2011) (cleaned up). “There is no genuine issue of material
fact unless the evidence, construed in the light most favorable to the non-moving party,
is such that a reasonable jury could return a verdict for the non-moving party.” Bones v.
Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).

At summary judgment, a movant that does not bear the ultimate burden of
persuasion at trial does not need to disprove the other party’s claim; rather, the movant
must only point the Court to a lack of evidence for the other party on an essential element
of that party’s claim. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998).

Once this movant has met its initial burden, the burden then shifts to the nonmoving party
to “set forth specific facts showing that there is a genuine issue for trial.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

When considering the evidence in the record, the Court cannot and does not weigh 

the evidence or determine the credibility of witnesses. See id. at 249; Fogarty v. Gallegos, 523 F.3d 1147, 1165 (10th Cir. 2008). At all times, the Court views the record in the light
most favorable to the nonmoving party. Banner Bank v. First Am. Title Ins. Co., 916 F.3d
1323, 1326 (10th Cir. 2019).

B. Undisputed Material Facts

The following undisputed material facts are drawn from the summary judgment
record.

1. At all relevant times, Ms. Marra was insured through an automobile
insurance policy issued by Owners, providing up to $250,000 in UIM coverage. [Doc. 46

at ¶ 1; Doc. 52 at 2 ¶ 1; Doc. 46-2].

2. Ms. Marra was involved in a motor vehicle collision and recovered $100,000
from the tortfeasor’s insurance company, which was equal to the tortfeasor’s liability
limits. [Doc. 46 at ¶¶ 2–3; Doc. 52 at 2 ¶¶ 2–3; Doc. 21 at 10 ¶¶ 1–3].

3. On November 24, 2021, Ms. Marra submitted a UIM claim to Owners, along
with approximately $53,000 in medical bills. [Doc. 46 at ¶ 4; Doc. 52 at 2 ¶ 4; Doc. 46-3;
Doc. 46-4 at 1].

4. On March 9, 2022, Owners sent Ms. Marra a letter advising that it did not
believe UIM benefits were owed. [Doc. 46 at ¶ 5; Doc. 52 at 2 ¶ 5; Doc. 46-4 at 1].
5. On October 5, 2023, Plaintiff’s counsel sent a demand letter to Owners,
demanding benefits in an amount equal to the policy’s UIM liability limits. In that letter,
Plaintiff claimed between $67,541.32 to $70,391.32 in economic damages and
$915,982.00 in total damages (including non-economic damages). [Doc. 46 at ¶¶ 6–8;

Doc. 52 at 2 ¶¶ 6–8; Doc. 46-5 at 10–11; Doc. 46-6].

6. After receipt of the demand letter, Owners hired Dr. Marjorie Eskay-
Auerbach (“Dr. Eskay-Auerbach”) “to undertake a medical records review and address
the causal relationship, if any, between Plaintiff’s claimed injuries” and the collision. [Doc.
46 at ¶ 9; Doc. 52 at 2 ¶ 9; Doc. 46-1 at ¶ 9].

7. After Owners received Dr. Eskay-Auerbach’s report and provided a copy to
Plaintiff, Owners sent a letter to Plaintiff’s counsel on February 9, 2024 reiterating that it
did not believe it owed any UIM benefits to Plaintiff. [Doc. 46 at ¶¶ 16–18; Doc. 52 at 3
¶¶ 16–18; Doc. 46-14; Doc. 46-15]. Owners sent an additional letter on February 27,
2024 that summarized Dr. Eskay-Auerbach’s opinions and repeated its position that

Plaintiff’s damages attributable to the subject collision did not exceed $100,000. [Doc. 46
at ¶ 19; Doc. 52 at 3 ¶ 19; Doc. 46-16].

8. Plaintiff’s counsel responded by providing a report from Dr. Stephen
Scheper (“Dr. Scheper”), who disagreed with Dr. Eskay-Auerbach’s opinions. [Doc. 46
at ¶ 20; Doc. 52 at 3 ¶ 20; Doc. 46-17; Doc. 46-18].

9. Owners obtained a supplemental report from Dr. Eskay-Auerbach
addressing Dr. Scheper’s opinions and provided that supplemental report to Plaintiff’s
counsel on April 24, 2024, again repeating its position that UIM benefits were not owed.

[Doc. 46 at ¶¶ 21–23; Doc. 52 at 3 ¶¶ 21–23; Doc. 46-19; Doc. 46-20; Doc. 46-21].
10. Plaintiff filed this lawsuit on April 26, 2024. [Doc. 46 at ¶ 24; Doc. 52 at 3
¶ 24; Doc. 3 at 1].

C. Analysis

Under Colorado law, there are two types of insurance-based bad faith claims

available to an insured party: (1) common law bad faith and (2) unreasonable delay or
denial of insurance benefits under Colo. Rev. Stat. §§ 10-3-1115 and -1116 (or “statutory
bad faith”). McKinney v. State Farm Mut. Auto. Ins. Co., No. 20-cv-01651-CMA-KLM, 2021 WL 4472921, at *4 (D. Colo. Sept. 30, 2021). Plaintiff asserts both here, see [Doc.
3 at 10–11], and Defendant moves for summary judgment in its favor on those claims,
see [Doc. 46].

To succeed on a statutory claim of unreasonable delay or denial, an insured must
establish that (1) the insurer delayed or denied payment of benefits to the insured, and
(2) the delay or denial was without a reasonable basis. Am. Family Mut. Ins. Co. v.
Barriga, 418 P.3d 1181, 1185–86 (Colo. 2018). The requirements for success on a

common law claim are similar, but “heightened.” Butman Fam. Inv. Ltd. P’ship v. Owners
Ins. Co., No. 19-cv-01638-KLM, 2020 WL 1470801, at *8 (D. Colo. Mar. 25, 2020). In
addition to demonstrating that the insurer delayed or denied the payment of benefits
without a reasonable basis, “a common law insurance bad faith claim requires the insured
to [prove] . . . that the insurer knowingly or recklessly disregarded the validity of the
insured’s claim.” Id. (quoting Fisher v. State Farm Mut. Auto. Ins. Co., 419 P.3d 985, 990 (Colo. App. 2015), aff’d, 418 P.3d 501 (Colo. 2018)).

Thus, to succeed on either bad faith claim, Ms. Marra must show that Owners
acted unreasonably. “The reasonableness of the insurer’s conduct is determined
objectively and is ‘based on proof of industry standards.’” Schultz v. GEICO Cas. Co., 429 P.3d 844, 847 (Colo. 2018) (quoting Goodson v. Am. Standard Ins. Co. of Wis., 89
P.3d 409, 415 (Colo. 2004)). So long as the insurer had a reasonable basis for its action,
it did not act unreasonably. See Wagner v. Am. Fam. Mut. Ins. Co., [569 F. App’x 574,

580](https://www.courtlistener.com/opinion/2679584/wagner-v-american-family-mutual-insurance/#580) (10th Cir. 2014) (“We find nothing unreasonable about American Family's denial of
her claim because it had a reasonable basis for its action.”); Ayala v. State Farm Mut.
Auto. Ins. Co., 628 F. Supp. 3d 1075, 1082 (D. Colo. 2022) (“An insurer’s denial of a claim
does not constitute statutory bad faith if the insurer has a reasonable basis for the
denial.”). The insurer’s decision to deny benefits is evaluated “based on the information
before the insurer at the time of that decision.” Schultz, 429 P.3d at 847.
“What constitutes reasonableness under the circumstances is ordinarily a question
of fact for the jury.” Vaccaro v. Am. Fam. Ins. Grp., 275 P.3d 750, 759 (Colo. App. 2012).

But “in appropriate circumstances,” such as “when there are no genuine issues of material
fact, reasonableness may be decided as a matter of law.” Id.

     1.   Statutory Bad Faith                                        
Owners argues that it is entitled to summary judgment on Plaintiff’s statutory claim 

because it had two reasonable bases to deny Plaintiff’s claim, so Plaintiff cannot establish
that its decision was made without any reasonable basis. [Doc. 46 at 12–18]. The Court
addresses Defendant’s second stated basis first. Owners contends that its decision to
deny Plaintiff’s UIM claim was supported by a reasonable basis because Owners relied
on Dr. Eskay-Auerbach’s report in making its decision. [Id. at 15]. It asserts that “[a]n
insurer’s reliance on an expert report, prepared by a qualified professional according to
established and reliable methods, has been found to serve as, at a minimum, a
reasonable basis for its claim determinations.” [Id. at 16 (emphasis omitted) (first citing
El Dueno, LLC v. Mid-Century Ins. Co., No. 21-cv-01532-DDD-JPO, 2024 WL 1236245,
at *2 (D. Colo. Feb. 23, 2024), aff’d, No. 24-1110, 2025 WL 1540329 (10th Cir. May 30,
2025), and then citing Avalon Condo. Ass’n, Inc v. Secura Ins., No. 14-cv-00200-CMA-

KMT, 2015 WL 5655528, at *5 (D. Colo. Sept. 25, 2015))].

Ms. Marra responds that Defendant’s reliance on the expert report was not
reasonable because Dr. Eskay-Auerbach’s opinions “have been contradicted by both
Plaintiff’s retained medical experts and treating providers.” [Doc. 52 at 15]. Specifically,
she directs the Court to her own expert’s report, where Dr. Scheper disagreed with Dr.
Eskay-Auerbach’s conclusions and criticized Dr. Eskay-Auerbach’s approach in forming
her opinions. See [id. at 17]; see also [Doc. 46-18]. And elsewhere, Plaintiff argues that
another court in this District “deemed an insurance company’s exclusive reliance on one
expert’s report while ignoring the reports of an insured’s experts is itself evidence
sufficient to support a verdict against an insurance company for bad faith and

unreasonable denial of benefits.” [Id. at 15 (citing Casaretto v. GEICO Gas. Co., 16-cv-
00285-MEH, 2017 WL 7731742, at *4 (D. Colo. Aug. 9, 2017))].

However, the mere fact that there was disagreement between Dr. Eskay-
Auerbach’s report and Dr. Scheper’s report is insufficient to show that Defendant’s
reliance on Dr. Eskay-Auerbach’s report was unreasonable. “[D]isagreements between
an insurance company’s expert and a plaintiff’s expert do not necessarily suggest that the
[insurance company’s] investigation or claim denial was unreasonable.” El Dueno, LLC
v. Mid-Century Ins. Co., 2025 WL 1540329, at *4 (10th Cir. May 30, 2025). Here, Plaintiff
does not articulate any relevant insurance industry standard that Owners violated by
relying on the Eskay-Auerbach report or through the actions it took in response to
receiving Dr. Scheper’s conflicting opinions. See [Doc. 52 at 15–18]. “Industry standards
supply the guidepost to assess the reasonableness of the insurer’s conduct,” Sandoval
v. Unum Life Ins. Co. of Am., 952 F.3d 1233, 1239 (10th Cir. 2020) (citing Goodson, [89

P.3d at 415](https://www.courtlistener.com/opinion/5322620/goodson-v-american-standard-insurance-co-of-wisconsin/#415)), and without some articulation about what industry standard Owners violated,
no reasonable jury could find that Owners acted unreasonably, see El Dueno, 2025 WL
1540329, at *3 (finding it “glaring” that plaintiff “never articulate[d] any industry standard”
in arguing that insurer’s reliance on expert report was unreasonable and affirming
summary judgment in insurer’s favor); Avalon, 2015 WL 5655528, at *5 (“Although
Plaintiff disagrees with [the expert’s] findings, mere disagreement of this sort is insufficient
for Plaintiff to sustain its bad faith claim.”).1

Accordingly, to the extent Owners relied on Dr. Eskay-Auerbach’s report in denying
Plaintiff’s claim in 2024, the Court finds that Ms. Marra has not established a genuine
dispute of fact as to Defendant’s reasonableness. El Dueno, 2025 WL 1540329, at *3.

Thus, in this respect, reasonableness may be determined as a matter of law. Vaccaro,

1 The Court respectfully concludes that Casaretto provides little support for Plaintiff’s
argument. In Casaretto, the court denied an insurance company’s post-trial motion for
judgment as a matter of law upon concluding that the jury’s verdict was supported by
sufficient evidence of bad faith. 2017 WL 7731742, at *4. Specifically, there was
evidence that the defendant insurance company took no action to resolve a discrepancy
in causation opinions between the plaintiff’s treating physician and the defendant’s
independent medical examiner, and the court found that the evidence “demonstrat[ing]
that [the insurer] did not investigate conflicting statements in the record” was sufficient to
support the jury’s finding of unreasonable conduct. Id. But here, Plaintiff does not argue
or present evidence showing that Owners took no action to resolve the conflicting
opinions; rather, the undisputed facts establish that, in response to receiving Dr.
Scheper’s opinions, Owners sent Dr. Scheper’s report to Dr. Eskay-Auerbach, asked her
to provide a supplemental report, obtained that supplemental report, and provided that
supplemental report to Plaintiff. [Doc. 46 at ¶¶ 20–23; Doc. 52 at 3 ¶¶ 20–23]. 275 P.3d at 759. But Defendant cannot rely on Dr. Eskay-Auerbach’s report to defeat the
entirety of Plaintiff’s statutory bad faith claim, since “the reasonableness of an insurer’s
decision to deny or delay benefits to its insured must be evaluated based on the
information that was before the insurer at the time it made its coverage decision,” Schultz,

429 P.3d at 848–49, and it is undisputed that Owners received Dr. Eskay-Auerbach’s
report on December 9, 2023, see [Doc. 46 at ¶ 16; Doc. 52 at 3 ¶ 16]. Thus, Owners
could not have relied on the report in its initial denial of Plaintiff’s UIM claim on March 9,
2022. See [Doc. 52 at 3–5, 14–15 (Plaintiff suggesting that Defendant’s actions related
to the initial denial in 2022 were unreasonable)]. Accordingly, this argument does not
entitle Defendant to summary judgment on the statutory claim, so the Court turns to
Defendant’s alternative argument.

Defendant’s other argument relies on the fact that Plaintiff’s claimed economic
damages did not exceed the $100,000 she received from the tortfeasor’s insurance
company. It takes the position that “noneconomic and impairment damages are

inherently subjective and unknowable, and an insured is not entitled to a sum certain for
such damages.” [Doc. 46 at 13]. Defendant then appears to argue that, because non-
economic damages are “inherently subjective and unknowable,” then non-economic
damages can never be measured at a sum-certain amount, and for this reason alone
Owners necessarily had a reasonable basis to deny Plaintiff’s claim: “[a]s [non-economic
damages] are inherently unknowable damage categories for which no sum certain is
owed to an insured, and which Owners disputed, Plaintiff cannot establish Owners lacked
any reasonable basis for its evaluation of the Claim by disagreeing that such damages
totaled more than $29,608.69.”2 [Id. at 10 (emphasis omitted)]; see also [Doc. 53 at 6
(“[I]f an insured is not entitled to any sum certain for these damage categories, and the
sole way to show entitlement to any UIM benefits is to establish a sum certain for such
categories, it provides credible evidence for an insurer to dispute a claim.” (emphasis

omitted))].

The Court respectfully disagrees with this argument. In 2024, the Colorado
Supreme Court confirmed that, under State Farm Mutual Automobile Insurance Co. v.
Fisher, 418 P.3d 501 (Colo. 2018), section 10-3-1115 requires an insurance company to
pay undisputed non-economic damages, even if other portions of the claim remain in
dispute. See Fear v. GEICO Cas. Co., 560 P.3d 974, 981 (Colo. 2024). And even though
“non-economic damages tend to involve greater subjectivity than other types of damages
like medical expenses and, as a result, it may well be a rare case in which non-economic
damages are not reasonably disputable,” the Fears court “decline[d] to conclude, as a
matter of law, that such damages (or a portion thereof) can never be undisputed or free

from reasonable dispute such that Fisher would require an insurer to pay them.” Id. at
981–82. The Court thus disagrees with Defendant’s suggestion that an insurer always
has a reasonable basis to deny UIM benefits if the insured relies on non-economic losses
to establish entitlement to those benefits.

Alternatively, Defendant argues that “Plaintiff can only establish that there was a
valuation dispute between the parties as to” her claimed non-economic damages. [Doc.

2 Defendant appears to reach this number based on Plaintiff’s claim of $70,391.32 in
medical expenses on October 5, 2023. But as mentioned above, in her initial claim in
November 2021, Plaintiff claimed approximately $53,000 in medical expenses. [Doc. 46-
4 at 1]. The exact amount of claimed medical expenses is not material to this Court’s
ruling.

46 at 10]; see also Fear, 560 P.3d at 981 (“[A] genuine difference of opinion regarding
the value of an insurance claim may weigh against a finding of bad faith.”). Plaintiff
responds that Defendant’s evaluation of her claim was unreasonable because it “failed to
consider all evidence presented by Plaintiff.” [Doc. 52 at 13 (emphasis omitted)]. She

references the report of her insurance industry expert, John Kezer (“Mr. Kezer”), and
argues that Mr. Kezer’s report “detail[s] numerous instances of what constitutes bad faith
and unreasonable conduct on the part of Defendant” and is “sufficient in and of itself to
defeat Defendant’s Summary Judgment Motion as this constitutes evidence that a jury
could reasonably find, as Plaintiff contests, that Defendant did not act reasonably and
instead acted in bad faith and in violation of the statue in responding to her claim.” [Id. at
14–15].

Insofar as Plaintiff cites to the entirety of Mr. Kezer’s report and claims that the
report is alone sufficient to defeat summary judgment, the Court disagrees. “[I]t is the
responding party’s burden to ensure that [a] factual dispute is portrayed with particularity,

without depending on the trial court to conduct its own search of the record.” Cross v.
Home Depot, 390 F.3d 1283, 1290 (10th Cir. 2004) (cleaned up). This Court has no
obligation to search through Mr. Kezer’s report to find support for Plaintiff’s arguments.

Mitchell v. City of Moore, 218 F.3d 1190, 1199 (10th Cir. 2000).

Even so, the Court concludes that Plaintiff has done enough to avoid summary
judgment to the extent her claim is based on events prior to Defendant obtaining and
relying on Dr. Eskay-Auerbach’s report. Relevant here, Plaintiff’s bad faith claims are
based at least in part on Defendant’s denial of UIM benefits on March 9, 2022. See [Doc.
21 at 2]. And in her Statement of Additional Undisputed Facts, Ms. Marra directs the
Court evidence that Defendant’s claim adjuster’s notes “do not reflect any evaluation of
Plaintiff’s [original] demand between December 20, 2021 and March 9, 2022,” “do not
indicate that [the claim adjuster] reviewed any of Plaintiff’s medical records before March
9, 2022,” and do not show that “the adjuster ever evaluated Plaintiff’s claim for non-

economic or permanent physical impairment damages” between December 16, 2021 and
March 9, 2022. [Doc. 52 at 4 ¶¶ 3–4, 6–7; Doc. 52-3]. She also directs the Court to Mr.
Kezer’s report, which opines (among other things) that, at the time of the initial denial of
the claim in March 2022, there had been “no ‘evaluation’ of Ms. Marra’s UIM claim” and
“there was nothing [in the file] to indicate that the adjuster
considered any non-economic losses (which were outlined in detail in Ms. Marra’s
November 24, 2021, demand letter to [the tortfeasor’s insurance company,] which was
provided to Owners).” [Doc. 52-24 at 14]. Mr. Kezer also ties these opinions to what he
believes are insurance industry standards. See [id. at 6–7, 14–15].

Because Plaintiff has submitted evidence that Owners initially denied her UIM

claim without actually evaluating it and without even considering non-economic damages,
she has created a genuine dispute of material fact sufficient to preclude summary
judgment, and the reasonableness of Defendant’s conduct is “a question of fact for the
jury.” Vaccaro, 275 P.3d at 759.3

3 Owners argues in its Reply that its actions between December 2021 and March 9, 2022
are “immaterial” because “Plaintiff testified in her deposition of her belief that Owners’
alleged bad faith began on March 9, 2022.” [Doc. 53 at 7]. Owners cites no legal authority
for the proposition that a non-lawyer litigant’s statement that it was her “opinion that [the
insurance company’s] unreasonable behavior began” on a certain date, [Doc. 53-1 at
125:7–9], renders the insurer’s conduct prior to that date completely immaterial to a bad
faith claim. To the extent Owners believes that Ms. Marra’s deposition testimony helps
its case, it may present that evidence to the jury.

The Motion for Summary Judgment is therefore DENIED with respect to Plaintiff’s
statutory bad faith claim.4

2. Common Law Bad Faith

To succeed on a common law claim, Plaintiff must show (1) Defendant acted

unreasonably; and (2) Defendant acted with knowledge or reckless disregard of its
unreasonable conduct. Travelers Ins. Co. v. Savio, 706 P.2d 1258, 1275 (Colo. 1985).

To prove the second element, Plaintiff can show that “Defendant “act[ed] with knowledge
that its position lack[ed] a reasonable basis” or that it was “deliberately indifferent to
information concerning the claim.” Masters v. Safeco Ins. Co. of Am., No. 20-cv-00631-
PAB-NRN, 2021 WL 4326269, at *11 (D. Colo. Sept. 23, 2021) (citing Colo. Jury
Instructions, Civ. § 25:7). Owners argues that summary judgment should enter in its favor
on Plaintiff’s common law claim because “there is no evidence that Owners acted
knowingly unreasonably or in reckless disregard of being unreasonable, as required for
Plaintiff to satisfy her burden on her Common Law Bad Faith Claim.” [Doc. 46 at 19]. In

her Response, Ms. Marra does not squarely address Defendant’s argument about the
knowledge or reckless disregard requirement. See [Doc. 52 at 18–19]. She asserts that
there are disputes of fact about whether “Defendant failed to conduct an evaluation of
Plaintiff’s claim, much less conduct a reasonable evaluation,” [id. at 18], and she argues
that, based on these disputes, a reasonable jury could find that Defendant acted in bad
faith, see [id. at 18–19].

4 However, for the reasons explained above, Plaintiff will not be permitted to argue at trial
that Defendant’s reliance on Dr. Eskay-Auerbach’s report was unreasonable or that
Defendant lacked a reasonable basis to deny Plaintiff’s October 2023 UIM demand.
Defendant has not demonstrated an entitlement to summary judgment on Plaintiff’s
common law claim. To succeed on her common law bad faith claim, Ms. Marra must
show that Owners knew its conduct was unreasonable or that Owners acted with reckless
disregard for its unreasonable conduct. Kisselman v. Am. Fam. Mut. Ins. Co., [292 P.3d

964, 970](https://www.courtlistener.com/opinion/5327896/kisselman-v-american-family-mutual-insurance-co/#970) (Colo. App. 2011). Plaintiff can prove this element by establishing that Owners
was “deliberately indifferent to information concerning the claim.” Masters, 2021 WL
4326269, at *11. Ms. Marra has submitted evidence that Owners initially denied her claim
without conducting any evaluation of it at all, and that this did not comply with industry
standards. See [Doc. 52-24 at 14]. A reasonable jury could conclude, based on this
evidence, that Owners was deliberately indifferent to information concerning Plaintiff’s
claim and recklessly disregarded the validity of her claim. See Fifer v. Travelers Prop.
Cas. Co. of Am., No. 23-cv-00294-NYW-CYC, 2025 WL 2513472, at *6 (D. Colo. Sept.
2, 2025) (this Court denying summary judgment on common law claim where there were
disputes of fact regarding whether the insurer ignored evidence and “whether its

investigation was reasonably framed and investigated”); Palmer v. Owners Ins. Co., No.
18-cv-01953-JLK, 2019 WL 7370372, at *4 (D. Colo. Nov. 6, 2019) (concluding that
Owners’s “failure to fully investigate” could “be viewed as reckless disregard for the
validity of the [plaintiffs’] claim”).

For these reasons, Defendant has not demonstrated that it is entitled to summary
judgment on either of Plaintiff’s bad faith claims. The Motion for Partial Summary
Judgment is DENIED.

II. Motion to Exclude

Owners also moves to exclude or limit the testimony of six expert witnesses
disclosed by Ms. Marra. See [Doc. 43].

A. Legal Standards

     1.   Rule 26(a)(2)                                              
Rule 26(a)(2) governs the disclosure of experts.  Generally, if an expert has been 

retained or specially employed for the purpose of providing expert testimony, a party must
not only identify the expert witness, but must also disclose a report that contains, inter
alia, a complete statement of the witness’s opinions; the facts and data the witness
considered in forming her opinions; a list of cases in which the witness has testified during
the previous four years; and a statement of compensation paid to the expert for their
testimony. Fed. R. Civ. P. 26(a)(2)(B). In contrast, if an expert witness has not been
retained, then Rule 26(a)(2)(C) requires the disclosing party to (1) identify the subject
matter upon which the witness is expected to present evidence and (2) provide a

summary of the facts and opinions to which the witness is expected to testify. Fed. R.
Civ. P. 26(a)(2)(C). The purpose of these expert disclosures is “to eliminate surprise and
provide opposing counsel with enough information . . . to prepare efficiently for deposition,
any pretrial motions and trial.” Cook v. Rockwell Int’l Corp., 580 F. Supp. 2d 1071, 1122 (D. Colo. 2006).

The District of Colorado has traditionally employed a burden-shifting analysis to
determine whether the requirements of Rule 26(a)(2) have been satisfied. See, e.g.,
Morris v. Wells Fargo Bank, N.A., No. 09-cv-02160-CMA-KMT, 2010 WL 2501078, at *2
(D. Colo. June 17, 2010). The party moving to strike an expert witness bears the initial
burden of showing that the disclosing party failed to comply with Rule 26(a)(2). Id. If the
moving party makes such a showing, the burden shifts to the disclosing party to
demonstrate the sufficiency of the expert disclosures. See id.

2. Rule 37(c)(1)

Where a party “violates [her] discovery obligations under Rule 26, [she] ‘is not 

allowed to use that information or witness to supply evidence . . . at a trial, unless the
failure was substantially justified or is harmless.” Hellen v. Am. Fam. Ins. Co., No. 22-cv-
02717-REB-SBP, 2024 WL 1194048, at *3 (D. Colo. Mar. 7, 2024) (quoting Fed. R. Civ.
P. 37(c)(1)). Rule 37(c)(1) provides, in pertinent part:

If a party fails to provide information or identify a witness as required by
Rule 26(a) . . . , the party is not allowed to use that information or witness
to supply evidence on a motion, at a hearing, or at a trial, unless the failure
was substantially justified or is harmless.

Fed. R. Civ. P. 37(c)(1).

The determination of whether a Rule 26(a) violation is justified or harmless is
entrusted to the broad discretion of the district court. Woodworker’s Supply, Inc. v.
Principal Mt. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999). In exercising its discretion,
the Court’s consideration is guided by the following four factors: (1) the prejudice or
surprise to the impacted party; (2) the ability to cure the prejudice; (3) the potential for trial
disruption; and (4) the erring party’s bad faith or willfulness. Id. The party that violated
Rule 26(a) bears the burden of demonstrating that the violation was substantially justified
or harmless. Sender v. Mann, 225 F.R.D. 645, 655 (D. Colo. 2004); accord Hirpa v. IHC
Hosps., Inc., 50 F. App’x 928, 932 (10th Cir. 2002).

3. Rule 702

Rule 702 of the Federal Rules of Evidence states:

A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if the
proponent demonstrates to the court that it is more likely than not that:

(a) the expert’s scientific, technical, or other specialized knowledge will help 
the trier of fact to understand the evidence or to determine a fact in issue; 

(b) the testimony is based on sufficient facts or data;              

(c) the testimony is the product of reliable principles and methods; and 

(d) the expert’s opinion reflects a reliable application of the principles and 
methods to the facts of the case.                                    

Fed. R. Evid. 702. “In essence, Rule 702 permits a court to admit expert testimony that
is ‘both reliable and relevant.’” Sanderson v. Wyo. Highway Patrol, 976 F.3d 1164, 1172 (10th Cir. 2020) (quoting United States v. Rodriguez-Felix, 450 F.3d 1117, 1122 (10th Cir.
2006)). The party offering expert testimony has the burden of showing its admissibility by
a preponderance of the evidence. Squires ex rel. Squires v. Goodwin, 829 F. Supp. 2d
1041, 1048 (D. Colo. 2011).

It is well established that trial courts are charged with the responsibility of acting
as gatekeepers to ensure that expert testimony is reliable and relevant. See Kumho Tire
Co. v. Carmichael, 526 U.S. 137, 147–52 (1999); Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 588–89 (1993). To fulfill that gatekeeper function, the trial court first
analyzes whether the proffered expert is qualified “by knowledge, skill, experience,
training, or education” to render their opinions. Fed. R. Evid. 702; Bill Barrett Corp. v.
YMC Royalty Co., 918 F.3d 760, 770 (10th Cir. 2019). If the expert is qualified, the trial
court must determine whether the expert’s opinions are reliable by assessing the
underlying reasoning and methodology. Bill Barrett Corp., 918 F.3d at 770. The court
must also determine whether the expert’s opinions are “applicable to a particular set of
facts,” i.e., are relevant to the case at hand. Dodge v. Cotter Corp., 328 F.3d 1212, 1221
(10th Cir. 2003). This inquiry “encompasses Rule 702’s requirement that the evidence
help the trier of fact to understand the evidence or to determine a fact in issue.”

Sanderson, 976 F.3d at 1172 (cleaned up).

B.   Analysis                                                        
     1.   Conceded or Resolved Matters                               
Owners moves to exclude the testimony of Matt Lane, a nurse consultant hired to 

observe Ms. Marra’s independent medical examination. [Doc. 43 at 8–9]. In her
Response, Ms. Marra “withdraws Mr. Lane as an expert in this case.” [Doc. 47 at 6].

Because Mr. Lane’s testimony is no longer at issue, the portion of the Motion to Exclude
addressing his testimony is DENIED as moot.

Similarly, Owners moves to exclude the testimony of Dr. Scheper because
(1) Plaintiff failed to provide a list of Dr. Scheper’s testimony history, as required by Rule
26(a)(2)(B)(v); and (2) Plaintiff failed to provide compensation information for Dr. Scheper,

as required by Rule 26(a)(2)(B)(vi). [Doc. 43 at 11–12]. Ms. Marra responds that “Dr.
Scheper has not testified in deposition or trial in the last four years so there is no
testimonial history to provide.” [Doc. 47 at 10]. She also concedes that she “mistakenly
fail[ed] to provide” compensation information, but states she has now “cured that defect.”

[Id. (citing [Doc. 47-5])]. In its reply brief, Defendant “withdraws its Motion as to Dr.
Scheper in light of Plaintiff’s advisement[s].” [Doc. 51 at 5]. Accordingly, this portion of
the Motion to Exclude is DENIED as moot.

2. Barbara Hinkle

Ms. Marra disclosed Barbara Hinkle (“Ms. Hinkle”), a licensed massage therapist,
as a non-retained expert witness. [Doc. 43-1 at 2]. Plaintiff’s disclosures state:
This expert’s testimonial opinions will be expressed to a reasonable degree
of medical probability. This expert is expected to testify consistent with their
records and reports, previously provided, and/or to be produced prior to trial
as well as any deposition testimony, and her endorsement is specifically
supplemented by any such future deposition testimony or additional
information received. She is expected to testify concerning her treatment
of Plaintiff; concerning amount and reasonableness, necessity and
relatedness of any past and future treatment and the cost therefor;
concerning muscular anatomy; and concerning mitigation. Basis of
testimony will include this provider’s education, personal experience and
knowledge with these types of injuries; this provider’s reports of treatment
and medical or other records; and this providers’ [sic] deposition involved in
this case, if any; personal history provided by the Plaintiff for purposes of
treatment; and this provider’s examination of the Plaintiff.

[Id.].

Owners argues that Plaintiff’s disclosure of Ms. Hinkle is deficient because it “fails
to provide any actual and specific opinions, the basis for any such opinions, or the facts
supporting those opinions as required by Rule 26(a)(2)(C).” [Doc. 43 at 9]. Ms. Marra
does not defend the sufficiency of this disclosure. Instead, she argues that even if the
Court finds that the disclosure is insufficient, there is no prejudice to Defendant because
Defendant “has all of [Ms. Hinkle’s] treatment records and was able to depose Ms. Hinkle
on July 11, 2025.” [Doc. 47 at 6–7].

The Court agrees with Defendant that Plaintiff’s disclosure of Ms. Hinkle fails to
comply with Rule 26(a)(2)(C). Rule 26’s advisory committee notes instruct that “[c]ourts
must take care against requiring undue detail, keeping in mind that these witnesses have
not been specially retained.” See Fed. R. Civ. P. 26 advisory committee’s note to 2010
amendments. “At a minimum, however, a disclosure must obviate the danger of unfair
surprise regarding the factual and opinion testimony of the non-retained expert and
contain more than a passing reference to the general type of care a treating physician
provided.” Vanderlaan v. Ameriprise Auto & Home Ins., No. 20-cv-00191-PAB-STV, 2021
WL 4441518, at *6 (D. Colo. Sept. 28, 2021) (quotation omitted). Plaintiff’s vague

references to the categories of opinions Ms. Hinkle will provide, without any supporting
facts, do not satisfy Rule 26’s requirements. See Tuft v. Indem. Ins. Co. of N. Am., No.
19-cv-01827-REB-KLM, 2021 WL 1759638, at *3 (D. Colo. Feb. 18, 2021) (finding that
the general statement that expert physicians would testify as to their “observations” of the
plaintiff, i.e., “general references to material without any specification of what opinions will
actually be offered,” did not meet the “summary” requirement of Rule 26(a)(2)(C)(ii));
Hayes v. Am. Credit Acceptance, LLC, No. 13-cv-02413-RDR, 2014 WL 3927277, at *3
(D. Kan. Aug. 12, 2014) (“It is not enough to state that the witness will testify consistent
with information contained [in] the medical records or consistent with the testimony given
during his or her deposition.”).

  Turning to whether the Rule 26(a)(2)(C) violation was substantially justified or 

harmless, Plaintiff does not expressly address the Woodworker’s factors, though she
does argue that there is no prejudice because Defendant has Ms. Hinkle’s treatment
notes and was able to depose Ms. Hinkle in July 2025. [Doc. 47 at 6–7]. Although the
issue has been inadequately presented to the Court, the Court declines to impose the
“extreme sanction” of excluding Ms. Hinkle’s testimony at trial. See Hartung v. Gommert,
No. 23-cv-00569-SCY-KK, 2024 WL 2975843, at *6 (D.N.M. June 13, 2024). Notably,
Owners does not argue that it was prejudiced by the deficient disclosure or argue that the
deposition was insufficient to cure any prejudice. See [Doc. 51 at 1–2]. And because
there has been no prejudice, the Court need not address ability to cure or the potential
for trial disruption, as no actions must be taken to alleviate the prejudice. And finally,
there is no evidence of bad faith on the part of Ms. Marra.

While the Court does not condone Plaintiff’s noncompliance with Rule 26, the

Court does not believe complete exclusion of Ms. Hinkle’s testimony is warranted.

Accordingly, the Motion to Exclude is DENIED as to Ms. Hinkle.5

3. Richard Walford and Thomas Higginbotham

Plaintiff also disclosed Richard Walford, D.C. (“Dr. Walford”), and Thomas
Higginbotham, D.O. (“Dr. Higginbotham”), as non-retained expert witnesses. [Doc. 43-1
at 1–3]. Owners asserts that Plaintiff’s designations of these providers as non-treating
experts are improper because they are expected “to opine on matters which go beyond
their role as a treating provider,” so a Rule 26(a)(2)(B) expert report from each is required.

[Doc. 43 at 10]. Specifically, Defendant challenges these providers’ opinions that the
subject accident caused Plaintiff’s injuries. [Id.].

Treating  providers  are  typically  designated  as  non-retained  experts,  as  the 

provider’s testimony generally flows from what the provider “saw and did” when
examining, diagnosing, and treating a patient. Bettmann v. Owners Ins. Co., No. 22-cv-

5 Defendant also moves to exclude Ms. Hinkle’s testimony on the grounds that she is not
qualified to offer testimony “pertaining to practicing medicine, physical therapy,
chiropractic therapy, making medical diagnoses, or . . . causation.” [Doc. 43 at 9–10].

Ms. Marra clarifies in her Response that Ms. Hinkle “will not be offered to testify
concerning the practice of medicine, physical therapy or chiropractic care, permanence
or impairment” and will only provide opinions “concerning her treatment of Plaintiff and
the costs, as well as muscular anatomy necessary for her testimony.” [Doc. 47 at 6]. With
this clarification and limiting of Ms. Hinkle’s opinions, the Court finds that Defendant’s
Rule 702 argument (which does not assert that Ms. Hinkle is unqualified to opine about
muscular anatomy or her treatment of Plaintiff) is moot.

03313-REB-STV, 2024 WL 1829263, at *1 (D. Colo. Feb. 12, 2024). However, “when a
treating physician opines as to causation, prognosis, or future disability, he is going
beyond his personal involvement in the facts of the case and giving an opinion formed
because there is a lawsuit.” Fitzgerald ex rel. Fitzgerald v. Cath. Health Initiatives Colo.,

No. 21-cv-00006-WJM-TPO, 2025 WL 861171, at *3 (D. Colo. Mar. 19, 2025) (cleaned
up). “In most cases, . . . an expert may offer such opinions only if they have produced a
report that complies with Rule 26(a)(2)(B).” Id. In her Response, Ms. Marra argues that Dr. Walford “has training in biomechanics
and accident reconstruction” and “regularly makes causation determinations from
trauma.” [Doc. 47 at 7]. She notes that Dr. Walford treated Plaintiff from July 2019 to
June 2021 and “has opined that the collision caused Ms. Marra's injures,” but she does
not expressly argue that Dr. Walford formed his causation opinions during his treatment
of Plaintiff. See [id. at 7–8]. Similarly, Ms. Marra argues that Dr. Higginbotham “has been
trained to determine cause of injuries” and that “his causation opinions formed following

his first meeting with Ms. Marra [and] were not the product of anticipation of litigation given
that his treatment of Plaintiff ended over three years before this case was filed.” [Id. at
9].

Dr. Walford. Insofar as Plaintiff’s citations to Dr. Walford’s deposition testimony
can be construed as an argument that Dr. Walford formed his opinions during the course
of his treatment of Plaintiff, the Court recognizes that Dr. Walford asserts that his
causation opinions were formed through his “diagnostic workup, orthopedic tests, range
of motion or loss of range of motion [tests].” [Doc. 47-3 at 27:6–16]; see also [id. at 32:24–
33:3 (stating that his opinion that Plaintiff’s sciatica was caused by the accident was based
on “X-ray and MRI reports” and “hands[-]on diagnostic palpation”); id. at 30:21–31:1 (also
stating that his opinions were based in part on Plaintiff’s history)]. To the extent Dr.
Walford formed his causation opinions based on his treatment of Plaintiff, his education,
and his experience, he generally would be permitted to offer that testimony. See Etherton

v. Owners Ins. Co., 35 F. Supp. 3d 1360, 1372 (D. Colo. 2014) (collecting cases reflecting
that “opinions of treating physicians on injury causation—based on medical knowledge,
physical examination, and patient histories—are routinely admitted in federal courts”),
aff’d, 829 F.3d 1209 (10th Cir. 2016); see also Hubchik v. Owners Ins. Co., No. 23-cv-
01359-DDD-KAS, 2025 WL 902164, at *8 (D. Colo. Jan. 28, 2025) (permitting causation
testimony based on doctor’s experience and expertise; the plaintiff’s history, complaints,
and symptoms; and the doctor’s physical examination of the plaintiff and imaging).6

Even so, Plaintiff’s disclosure of Dr. Walford is deficient under Rule 26(a)(2)(C).

Owners argues that “Plaintiff failed to sufficiently convey any particular facts, based on
[Dr. Walford’s] observations, as to how and why [he] reached those conclusions.” [Doc.

43 at 11]. Once again, Ms. Marra does not defend the sufficiency of her disclosures under
Rule 26(a)(2)(C), instead focusing on a purported lack of prejudice arising from the
deficient disclosure. [Doc. 47 at 8]. The Court agrees with Owners that Plaintiff’s
disclosure fails to comply with Rule 26(a)(2)(C), as it does not contain a summary of the
facts and opinions to which the witness is expected to testify. See [Doc. 43-1 at 2–3]; see
also Tuft, 2021 WL 1759638, at *3; Hayes, 2014 WL 3927277, at *3.

6 Defendant asserts that Dr. Walford “did not mention the subject accident in any of his
treatment records.” [Doc. 51 at 2]. However, neither Party has provided the Court with
Dr. Walford’s treatment records, so the Court cannot confirm this assertion.

Turning to the Woodworker’s factors, Ms. Marra contends only that “the fact that
Defendant has had the chance to depose [Dr. Walford] with all of his treatment records
as well as the fact that no trial is set in this matter eliminates any potential surprise or
prejudice to Defendant.” [Doc. 47 at 8]. Owners responds that its ability to take Dr.

Walford’s deposition does not cure the prejudice caused by the deficient disclosure
because Owners “did not know the specific factual bases for [Dr. Walford’s] causation
opinions until during the deposition,” so “Owners’ counsel was unable to effectively
prepare for” the deposition. [Doc. 51 at 4]. It also mentions that Dr. Walford’s deposition
occurred after the rebuttal expert deadline, so Owners was unable to arrange rebuttal
experts to address his causation opinions. [Id.].

This Court finds that Owners was prejudiced by Plaintiff’s deficient disclosure
because it was unable to effectively prepare for Dr. Walford’s deposition and was unable
to retain a rebuttal expert to address Dr. Walford’s causation opinions. And while the trial
has not been set in this case, the rebuttal expert deadline expired on June 27, 2025, and

discovery closed on July 30, 2025. [Doc. 34]; see also Fifer v. Travelers Prop. Cas. Co.
of Am., No. 23-cv-00294-NYW-CYC, 2025 WL 2418498, at *10 (D. Colo. Aug. 21, 2025)
(this Court finding prejudice in similar circumstances). Plaintiff does not suggest that
these discovery deadlines should be extended (or establish good cause to do so) or offer
any other methods through which the prejudice may be cured. See [Doc. 47 at 8].

However, the Court is mindful that exclusion is an “extreme sanction.” Hartung, 2024 WL
2975843, at *6. Accordingly, to the extent that Plaintiff seeks to offer causation opinions
through Dr. Walford at trial—limited to those opinions formed from his diagnostic workup,
orthopedic tests, range of motion or loss of range of motion tests—Plaintiff shall make Dr.
Walford available for an additional deposition no later than April 24, 2026 and shall bear
the costs of such deposition. Alternatively, Dr. Walford’s testimony will be limited to
his percipient knowledge of treatment, and he will not be permitted to testify as to any
causation opinions.

Dr.  Higginbotham.    Ms.  Marra  contends  that  Dr.  Higginbotham’s  causation 

opinions were “formed following his first meeting with Ms. Marra [and] were not the
product of anticipation of litigation given that his treatment of Plaintiff ended over three
years before this case was filed.” [Doc. 47 at 9]. But Ms. Marra points to no actual
evidence showing that Dr. Higginbotham’s causation opinions were formed exclusively
during the course of his treatment of Plaintiff. The treatment notes from the initial
evaluation on January 3, 2019 contain no causation opinions. [Doc. 47-1]. Insofar as
subsequent treatment notes could be construed to contain causation opinions, see, e.g.,
[Doc. 47-2 at 3 (“[Plaintiff] has had permanent sequela related to this motor vehicle
collision.”); id. at 4 (“Ms. Marra returns for further evaluation and treatment for injuries

stemming from a motor vehicle collision.”)], the notes provide no basis for the Court to
conclude that Dr. Higginbotham formed these opinions during the course of his treatment.

And Plaintiff does not direct the Court to any specific portions of Dr. Higginbotham’s
deposition testimony that she believes show he formed his causation opinions during his
treatment of Plaintiff. See [Doc. 47 at 9–10]. Ms. Marra has thus not met her burden of
showing that Dr. Higginbotham’s causation opinions are based on his percipient
knowledge and treatment of Plaintiff. Therefore, an expert report was required under
Rule 26(a)(2)(B), and Plaintiff’s failure to provide a report constitutes a Rule 26 violation.
As for the Woodworker’s factors, Plaintiff argues that “any potential prejudice is
harmless given that no trial is set and the Defendant has examined [Dr. Higginbotham’s]
opinions through deposition.” [Doc. 47 at 10]. Owners again notes that it was not
informed of the specific basis of Dr. Higginbotham’s causation opinions until his

deposition, so it was “unable to effectively prepare.” [Doc. 51 at 4]. It also asserts that it
has been prejudiced by the lack of an expert report because the deposition did not occur
until after the rebuttal expert deadline. [Id.]. The Court agrees with Defendant that it has
been prejudiced by the missing expert report, and Plaintiff has not presented any
argument explaining how this prejudice can be cured. And although the trial has not yet
been set, requiring Dr. Higginbotham to prepare an expert report and permitting
Defendant to disclose an additional rebuttal witness would delay the setting of trial. In
light of these circumstances, the Court finds that limiting Dr. Higginbotham’s causation
opinions is therefore warranted.

The Motion to Exclude is therefore GRANTED to the extent it seeks to preclude

Dr. Higginbotham from offering causation opinions at trial.7

4. John Kezer

Finally, Defendant moves to exclude a few dozen opinions offered by John Kezer,
Plaintiff’s insurance industry expert. See [Doc. 43 at 12–15]. It challenges opinions
contained both in Mr. Kezer’s affirmative report, [Doc. 43-4 (the “Kezer Report”)], and in
his rebuttal report, [Doc. 43-5 (the “Kezer Rebuttal Report”)], breaking up the numerous

7 Because Defendant’s challenge to Dr. Higginbotham’s opinions is limited to causation
opinions, see [Doc. 43 at 10], he will still be permitted to opine at trial about his treatment
of Plaintiff.

opinions into a few discrete categories, see [Doc. 43 at 12–15].8 The Court addresses
each category of challenged opinions below.

a. Opinions About What the Law Is

Owners challenges what it deems “impermissible statements of the applicable

law,” arguing that these opinions should be excluded because they invade the Court’s
role in instructing the jury on what the law is. [Id. at 13–14]. Although many of the
challenged opinions concern Defendant’s purported lack of compliance with insurance
industry standards, Owners insists that these opinions actually assert that “Owners
violated or failed to satisfy” regulations, statutes, and case law. [Id. at 13]. Owners does
not raise arguments specific to any particular opinion, instead challenging 16 opinions
collectively. See [id. at 13–14].

Our judicial system “reserves to the trial judge the role of adjudicating the law for
the benefit of the jury.” Specht v. Jensen, 853 F.2d 805, 809 (10th Cir. 1988). Thus,
courts routinely conclude an expert witness “may not direct the jury’s understanding of

the applicable legal rights and obligations of the parties.” Stoker v. State Farm Mut. Auto.
Ins. Co., No. 19-cv-03569-NYW, 2021 WL 4201583, at *6 (D. Colo. May 6, 2021).

Importantly, however, “simply referring to the law as part of the basis for an opinion will
not render that opinion improper.” EEOC v. W. Distrib. Co., 643 F. Supp. 3d 1205, 1219
(D. Colo. 2022); see also United States v. Schneider, 704 F.3d 1287, 1294 (10th Cir.
2013) (recognizing that courts “allow experts to refer to the law in expressing their opinion”
(cleaned up)). “[A]n expert’s testimony is proper under Rule 702 if the expert does not

8 Defendant has labeled each challenged opinion by number. See, e.g., [Doc. 43-4 at 30;
Doc. 43-5 at 3]. For ease of reference, the Court follows Defendant’s numbering
convention.

attempt to define the legal parameters within which the jury must exercise its fact-finding
function.” Specht, 853 F.2d at 809–10. But if the expert’s testimony “direct[s] the jury’s
understanding of the legal standards upon which their verdict must be based, the
testimony cannot be allowed.” Id. at 810.9

The Motion to Exclude is GRANTED in part and DENIED in part with respect to 

these opinions, as follows:

Opinion challenged Ruling

Kezer Report, Opinion 1 Overruled. This opinion does not usurp the Court’s role
[Doc. 43-4 at 11] in instructing the jury. References to law do not render
an expert’s opinions inadmissible, Schneider, 704 F.3d
at 1294, and some insurance industry standards are set
forth in statutes, see Gribowski v. State Farm Mut. Auto.
Ins. Co., No. 21-cv-03115-MEH, 2022 WL 16855688, at
*4 (D. Colo. Nov. 10, 2022).

Kezer Report, Opinion 4 Overruled. References to industry standards do not
[Doc. 43-4 at 14–15]. usurp the Court’s role in instructing the jury. But see
infra page 31 (clarifying limitations on this opinion).
Kezer Report, Opinion 5 Overruled. This opinion does not usurp the Court’s role
[Doc. 43-4 at 20]. in instructing the jury.

Kezer Report, Opinion 6 Overruled. This opinion does not usurp the Court’s role
[Doc. 43-4 at 21]. in instructing the jury. But see infra page 31 (limiting this
opinion for other reasons).

Kezer Report, Opinion 9 Overruled. This opinion does not usurp the Court’s role
[Doc. 43-4 at 30]. in instructing the jury, as references to law do not render
an expert’s opinions inadmissible. Schneider, 704 F.3d
at 1294. But see infra page 31 (clarifying limitations on
this opinion).

Kezer Report, Opinion 10 Overruled. This opinion does not usurp the Court’s role
[Doc. 43-4 at 30]. in instructing the jury.

Kezer Report, Opinion 12 Overruled. This opinion does not usurp the Court’s role
[Doc. 43-4 at 32]. in instructing the jury, as references to law do not render
an expert’s opinions inadmissible. Schneider, 704 F.3d
at 1294.

Kezer Report, Opinion 14 Sustained. An opinion that Owners owed a legal duty
[Doc. 43-4 at 32]. improperly “usurp[s] the function of the trial judge to

9 Owners also argues that “allowing Kezer to opine as to these sources of law as
insurance industry standards will undoubtedly lead to confusing the jury.” [Doc. 43 at 14].

Owners does not explain why permitting Mr. Kezer to merely reference sources of law,
which is permissible, see Schneider, 704 F.3d at 1294, would confuse the jury.

instruct the jury on the law.” Baumann v. Am. Fam. Mut.
Ins. Co., 836 F. Supp. 2d 1196, 1202 (D. Colo. 2011).
Kezer Report, Opinion 17 Overruled. This opinion does not usurp the Court’s role
[Doc. 43-4 at 34]. in instructing the jury.

Kezer Report, Opinion 18 Overruled. References to industry standards or law do
[Doc. 43-4 at 35]. not usurp the Court’s role in instructing the jury.

Schneider, 704 F.3d at 1294.

Kezer Report, Opinion 19 Overruled. This opinion does not usurp the Court’s role
[Doc. 43-4 at 35]. in instructing the jury. But see infra page 31 (excluding
this opinion for other reasons).

Kezer Report, Opinion 23 Overruled. This opinion does not usurp the Court’s role
[Doc. 43-4 at 42]. in instructing the jury. But see infra page 31 (excluding
this opinion for other reasons).

Kezer Rebuttal Report, Overruled. This opinion does not contain any legal
Opinion 6 [Doc. 43-5 at 4]. references and does not usurp the Court’s role in
instructing the jury.

Kezer Rebuttal Report, Overruled. This opinion does not contain any legal
Opinion 8 [Doc. 43-5 at 5]. references and does not usurp the Court’s role in
instructing the jury. But see infra page 31 (excluding
this opinion for other reasons).

Kezer Rebuttal Report, Overruled. References to law do not render an expert’s
Opinion 9 [Doc. 43-5 at 6]. opinions inadmissible. Schneider, 704 F.3d at 1294.
Kezer Rebuttal Report, Overruled. This instruction does not usurp the Court’s
Opinion 10 [Doc. 43-5 at role in instructing the jury. But see infra page 32
6]. (excluding this opinion for other reasons).

          b.   Opinions that Tell the Jury How to Decide the Case    
Next, Owners argues that some of Mr. Kezer’s opinions impermissibly usurp the 

jury’s fact-finding role by “instruct[ing] the jury how to conclude.” [Doc. 43 at 14]. It argues
that these opinions amount to “impermissible legal conclusions,” as Mr. Kezer opines that
Owners violated certain statutes or failed to comply with certain insurance industry
standards, and contends that these opinions would not be helpful to the jury. [Id.].

Defendant challenges thirteen10 separate opinions on this basis, without making specific
arguments as to any particular opinion. [Id.].

10 Because the Court has sustained Defendant’s objection to Opinion Number 14 in the
Kezer Report, the Court does not consider Defendant’s other challenge to that opinion.
An expert witness may not “state legal conclusions drawn by applying the law to
facts,” A.E. ex rel. Evans v. Indep. Sch. Dist. No. 25, 936 F.2d 472, 476 (10th Cir. 1991),
as “such ultimate conclusions would not be helpful to the jury and would improperly
intrude on its fact-finding function,” O’Sullivan v. Geico Cas. Co., [233 F. Supp. 3d 917,

929](https://www.courtlistener.com/opinion/7324096/osullivan-v-geico-casualty-co/#929) (D. Colo. 2017). In insurance cases, courts often hold that an expert may not testify
that an insurance company did or did not act in bad faith or did or did not act reasonably,
as such opinions amount to impermissible legal conclusions. See, e.g., Bethel v.
Berkshire Hathaway Homestate Ins. Co., 596 F. Supp. 3d 1260, 1269 (D. Colo. 2022);
Masters v. Safeco Ins. Co. of Am., No. 20-cv-00631-PAB-NRN, 2021 WL 4317112, at *10
(D. Colo. Sept. 23, 2021). Similarly, an expert may not opine that an insurance company
violated the law or violated the duty of good faith and fair dealing. O’Sullivan, 233 F.
Supp. 3d at 930; Specht, 853 F.2d at 808.

However, it is well-established in this District that an industry expert may opine
about whether an insurer complied with industry standards. See George v. Metro. Prop.

& Cas. Ins. Co., No. 18-cv-01663-PAB-SKC, 2020 WL 70424, at *9, *13 (D. Colo. Jan. 2,
2020) (permitting expert testify that insurer’s conduct “did not conform with” or “departed
from” insurance industry standards); Canyon Club Condo. Owners Ass’n v. Am. Fam.
Mut. Ins. Co., No. 18-cv-00683-DDD-STV, 2023 WL 10410009, at *4 (D. Colo. Sept. 29,
2023) (concluding that expert’s opinions about whether insurer complied with industry
standards “may assist the jury in its determination of whether or not the insurance claim
was investigated reasonably”).

The Motion to Exclude is GRANTED in part and DENIED in part with respect to
these opinions, as follows:

Opinion Challenged Ruling

Kezer Report, Opinion 1 Overruled. An expert may opine about whether an
[Doc. 43-4 at 11]. insurer’s conduct complied with industry standards.

George, 2020 WL 70424, at *9. However, Mr. Kezer will
not be permitted to couch his opinions as a statement
that Owners violated any statutory provision or other
provision of law. O’Sullivan, 233 F. Supp. 3d at 930.
Kezer Report, Opinion 4 Overruled. Mere references to industry standards do
[Doc. 43-4 at 14–15]. not usurp the jury’s fact-finding function, nor do Mr.
Kezer’s opinions concerning his interpretation of the
evidence, so long as he does not direct the jury which
way to decide.

Kezer Report, Opinion 5 Overruled. An expert may opine about whether an
[Doc. 43-4 at 20]. insurer’s conduct complied with industry standards.

George, 2020 WL 70424, at *9.

Kezer Report, Opinion 6 Sustained. An expert may opine about whether an
[Doc. 43-4 at 21]. insurer’s conduct complied with industry standards,

George, 2020 WL 70424, at *9, but may not proceed to
draw the conclusion for the factfinder that a duty was
breached, Wise v. USAA Cas. Ins. Co., No. 22-cv-

01694-REB-STV, 2024 WL 6100421, at *4 (D. Colo.

June 27, 2024).

Kezer Report, Opinion 9 Overruled. References to industry standards or law do
[Doc. 43-4 at 30]. not usurp the jury’s fact-finding function. However, Mr.
Kezer will not be permitted to opine that Owners violated
the law. O’Sullivan, 233 F. Supp. 3d at 930.

Kezer Report, Opinion 10 Overruled. An expert may opine about whether an
[Doc. 43-4 at 30]. insurer’s conduct complied with industry standards.

George, 2020 WL 70424, at *9.

Kezer Report, Opinion 12 Overruled. An opinion that “one must stop and
[Doc. 43-4 at 32]. consider” whether Owners violated industry standards
does not usurp the jury’s fact-finding function. However,
Mr. Kezer will not be permitted to opine that Owners
violated the law. O’Sullivan, 233 F. Supp. 3d at 930.
Kezer Report, Opinion 18 Overruled. This opinion does not usurp the jury’s fact-
[Doc. 43-4 at 35]. finding function.

Kezer Report, Opinion 19 Sustained. Mr. Kezer may not opine that Owners
[Doc. 43-4 at 35]. violated the law. O’Sullivan, 233 F. Supp. 3d at 930.
Kezer Report, Opinion 23 Sustained. An expert may not testify that an insurer
[Doc. 43-4 at 42]. acted reasonably or unreasonably or that an insurer
violated the law. Bethel, 596 F. Supp. 3d at 1269;
O’Sullivan, 233 F. Supp. 3d at 930.

Kezer Rebuttal Report, Sustained. An opinion that Owners did not attempt to
Opinion 8 [Doc. 43-5 at 5]. “fairly evaluate Ms. Marra’s claim” runs too close to an
opinion that Owners acted unreasonably, which is not
permissible. Bethel, 596 F. Supp. 3d at 1269.

Kezer Rebuttal Report, Overruled. An expert may opine about whether an
Opinion 9 [Doc. 43-5 at 6]. insurer’s conduct complied with industry standards.

George, 2020 WL 70424, at *9.

Kezer Rebuttal Report, Sustained. Mr. Kezer may not testify that Owners acted
Opinion 10 [Doc. 43-5 at unreasonably or acted in bad faith. Bethel, 596 F. Supp.
6 ]. 3d at 1269.

          c.   Legal Conclusions Disguised as Opinions               
Next, Owners challenges four separate opinions of Mr. Kezer’s, arguing that these 

opinions are “pure legal conclusions regarding relevancy, breach of the policy, and
creation of a legal duty.” [Doc. 43 at 14]. The Motion to Exclude is GRANTED in part
and DENIED in part with respect to these opinions, as follows:

Opinion Challenged Ruling

Kezer Report, Opinion 2 Sustained. Opinions regarding what may be required
[Doc. 43-4 at 11]. under the Federal Rules of Civil Procedure are not

permissible.

Kezer Report, Opinion 3 Overruled. This opinion is not a legal conclusion.
[Doc. 43-4 at 13].

Kezer Rebuttal Report, Overruled. This opinion is not a legal conclusion.
Opinion 2 [Doc. 43-5 at 2].

Kezer Rebuttal Report, Sustained. An opinion that Plaintiff’s injuries were
Opinion 3 [Doc. 43-5 at 3]. caused by the accident is not permitted. A.E., 936 F.2d
at 476.

          d.   Opinions that Are Irrelevant, Unhelpful, or Confusing  
Finally, Owners seeks exclusion of 16 separate opinions on the grounds that they 

are “irrelevant to the case, do not assist the factfinder, or otherwise cause confusion.”

[Doc. 43 at 15]. Owners challenges these opinions collectively, without explaining why
any particular opinion is irrelevant, unhelpful, or confusing. See [id.]. At best, Owners
asserts that “there are no claims or defenses pertaining to advertising, medical payments
coverage, post-litigation discovery, and claims assignment,” so any opinions related to
those topics “are neither relevant to Plaintiff’s pled claims, nor would they help the
factfinder.” [Id.].

The Court will not independently review all 16 opinions to determine each opinion’s
relevance, helpfulness, or clarity. It is not this Court’s duty to scour the record in support
of Defendant’s arguments, ascertain which opinions relate to “advertising, medical
payments coverage, post-litigation discovery, [or] claims assignment,” or otherwise
construct arguments on Defendant’s behalf. Ramos v. Banner Health, 1 F.4th 769, 783 (10th Cir. 2021). Accordingly, the Motion to Exclude is DENIED with respect to these
opinions.
CONCLUSION
For the reasons set forth in this Order, IT IS ORDERED that:
(1) Defendant Owners Insurance Company's Opposed Motion to Limit and/or
Exclude Expert Testimony Pursuant to Fed. R. Civ. P. 26(a)(2) and F.R.E.
702 [Doc. 43] is GRANTED in part and DENIED in part;
(2) Defendant Owners Insurance Company's Motion for Partial Summary
Judgment on Plaintiff's Second and Third Claims for Relief Pursuant to Fed.
R. Civ. P. 56(a) [Doc. 46] is DENIED; and
(3) A Telephonic Status Conference is SET for March 17, 2026 at 9:30 A.M.
to set the Final Pretrial/Trial Preparation Conference and trial in this case.
Counsel for the Parties shall participate using the following dial-in
information: 571-353-2301; Access Code: 783456374.

DATED: February 24, 2026 BY THE COURT:

                                     United States District Judge 

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