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Weimar v. Liberty Mutual Insurance Co.

United States District Court, M.D. Louisiana

August 29, 2019




         Before 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 DENIED.


         A. Testimony Concerning Tom Sumner as a "Replacement" Expert

         Defendants 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. (Id.).

         Plaintiffs 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).

         "Bad 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.

         B. Testimony of Louis Fey

         Defendants 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.).

         Plaintiffs claim that Fey, in his capacity as the Vice President of Risk Management at BXS Insurance, Inc. ("BXS"), [2] was "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.).

         Plaintiffs 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.

         C. Testimony that Defendants acted in Bad Faith

         Defendants 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 932, 941.

         Plaintiffs 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 instructs:

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 fact.

         The 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 ...

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