United States District Court, M.D. Louisiana
MR. AND MRS. JOHN WEIMAR
LIBERTY MUTUAL INSURANCE COMPANY
RULING AND ORDER
A. JACKSON JUDGE.
the Court is Defendants' Motion in Limine (Doc.
76) and Plaintiffs' Motion in Limine
(Doc. 77). Oral argument is not required. For the
reasons stated below, Defendants' motion is
GRANTED IN PART and DENIED IN
PART. Plaintiffs' motion is
DEFENDANTS' MOTION IN LIMINE
Testimony Concerning Tom Sumner as a "Replacement"
move to bar Plaintiffs from arguing at trial that Tom Sumner
is a "replacement" expert for Martin Ellison and
that Defendants acted in bad faith by-retaining an additional
expert during litigation. (Doc. 76-1 at p. 2). Defendants
claim that Ellison was hired to explore the issue of whether
water intrusion from the storm in February 2016 caused the
mold outbreak, while Sumner was retained to conduct a
holistic analysis of what caused the mold, generally.
(Id. at p. 3). Defendants argue that allowing
Plaintiffs to claim that the decision to retain another
expert was made in bad faith would be unfairly prejudicial.
claim that Ellison provided testimony that tends to discredit
Defendants' other evidence, and that Defendants only
retained Sumner to create a post hoc reason to deny
Plaintiffs' claims, two years after the denial letter was
sent. (Doc. 86-2 at p. 1-2).
faith means more than mere bad judgment or negligence; it
implies a dishonest purpose or evil intent." Vaughn
v, Franklin, 2000-0291 (La.App. 1 Cir. 3/28/01), 785
So.2d 79, 86, writ denied, 2001-1551 (La. 10/5/01),
798 So.2d 969. Plaintiffs have not presented enough evidence
to establish a "dishonest purpose or evil intent"
underlying the decision to switch expert witnesses.
Accordingly, Plaintiffs are barred from suggesting to the
jury that Summer's testimony is offered in bad faith.
Testimony of Louis Fey
object to the listing of Louis Fey as a fact witness on the
grounds that Fey was described by John Weimar as "an
expert in the arena" and "an industry
veteran," and will be used as an expert or a quasi
expert witness at trial. (Doc. 76-1 at p. 4). Defendants also
claim that Fey had no role whatsoever in Plaintiffs'
claim, and as such, testimony from Fey would be inappropriate
for a fact witness. (Id.).
claim that Fey, in his capacity as the Vice President of Risk
Management at BXS Insurance, Inc. ("BXS"),
"on the front lines" of helping Plaintiffs pursue
their insurance claims with Defendants. (Doc. 86-2 at p. 7).
Plaintiffs argue that Fey will only testify about events he
experienced while helping Plaintiffs with their claim and not
as an expert witness. (Id.).
have established the relevance of Fey's testimony, and
his adequacy as a fact witness. Further, there is no
indication that Defendants will be unduly prejudiced by
allowing Fey to testify. Plaintiffs have further averred that
they do not intend to offer Fey as an expert witness.
Finally, if during the trial, Defendants believe Fey's
testimony is straying into the realm of what should be
reserved for an expert witness, Defendants may raise an
objection at that time. Defendants' request is DENIED.
Testimony that Defendants acted in Bad
request that the Court bar Plaintiffs from introducing
testimony that Defendants acted in "bad faith."
(Doc. 76-1 at p. 7). Defendants cite several cases which
purport to establish that the testimony of a "bad faith
expert" should be excluded, as such questions are within
the purview of the court and the jury. See Marketfare
Annunciation, LLC v. United Fire & Cas. Co., No.
06-7232, 2008 WL 1924242 (E.D. La. Apr. 23, 2008); see also
Thompson v. State Farm Fire & Cas. Co., 34 F.3d
claim that certain testimony concerning the reasonableness of
actions taken by the parties involved in litigation can
assist the trier of fact in making a determination of whether
the decision to deny coverage was made in bad faith. (Doc.
86-2 at p. 11). Plaintiffs cite Owen v. Kerr-McGee
Corp., 698 F.2d 236, 239-40 (5th Cir. 1983) which
Federal Rule of Evidence 704 abolishes the per se
rule against testimony-regarding ultimate issues of fact. The
rule provides that testimony in the form of an opinion or
inference otherwise admissible is not objectionable because
it embraces an ultimate issue to be decided by the trier of
Court agrees with Plaintiffs. Testimony regarding how claims
such as these are normally processed may be helpful to the
jury when it considers whether Defendants' actions in
this case were appropriate. Further, if during trial,
Defendants believe that Plaintiffs1 witness are providing
testimony that amounts to a legal ...