v. San Diego Unified Port District et al

Filing 170

ORDER denying 120 Motion to Exclude; granting in part and denying in part 121 Motion to Exclude; denying 122 Motion to Preclude; granting in part and denying in part 124 Motion to Preclude; denying 127 Motion to Exclude; denying 130 Mo tion to Preclude; denying as Moot/Withdrawn 131 Motion to Withdraw ; denying 136 Motion to Preclude; denying 137 Motion to Preclude; granting in part and denying in part 138 Motion to Preclude; granting in part and denying in part 139 Moti on to Preclude; denying 141 Motion to Preclude; denying 143 Motion to Preclude; denying 144 Motion to Preclude; denying 145 Motion to Bifurcate; denying 147 Motion to Preclude; Reserves Ruling on 133 ; Reserves Ruling on 135 . Signed by Judge Roger T. Benitez on 10/22/2018. (anh)

.I
1
2

FILED

3

OCT 2 3 2018

4
5
6
7
UNITED STATES DISTRICT COURT

8

SOUTHERN DISTRICT OF CALIFORNIA

9
10
11
12

Plaintiff,

13
14
15
16
17

Case No.: 3:15-cv-01401-BEN-MDD

SAN DIEGO UNIFIED PORT
DISTRICT,

v.
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA.,
successor-in-interest to AIG
INSURANCE CO., and DOES 1 - 50,
Inclusive,

18

ORDER ON MOTIONS IN LIMINE

[Doc. Nos. 120, 121, 122, 124, 127, 130,
131, 133, 135, 136, 137, 138,
139,141,143,144,145,147]

Defendant.

19
20
21

Defendant National Union, successor-in-interest to Landmark Insurance Company

22

("Landmark") sold the Port both primary liability and umbrella liability insurance policies,

23

promising to defend and indemnify the Port against certain property damage liability

24

claims or lawsuits. National Union issued four primary policies to the Port. 1 National

25
26
27
28

1

The parties agree that two of the primary policies are exhausted. (Policy Nos. SMP
8002308 & GLA 5000574.) There are two other primary policies, which the Port
contends are not exhausted. (Policy Nos. GLA 5000110 and SMP 8002932.)
3: 15-cv-01401-BEN-MDD

1 Union also sold the Port "the first layer of liability insurance directly above the
2

Unexhausted Primary Policies and Exhausted Primary Policies in the form of' umbrella

3

insurance policies. Coverage under the four Umbrella Policies is triggered once the

4

Primary Policies are exhausted.

5

According to the First Amended Complaint ("FAC"), the Port tendered, and

6 National Union agreed to provide a defense under the Unexhausted Primary Policies to
7

certain claims ("Claims") and lawsuits ("Suits") asserted against the Port. 2 Subsequently,

8 National Union informed the Port that it "unilaterally would be assigning payments for one
9

of the Port's defense experts to [National Union's] indemnity obligation against the

10

Unexhausted Primary Policies' limits."

National Union then tendered the asserted

11

remaining policy limits to the Port and informed the Port "[National Union] considered the

12

Unexhausted Primary Policies to be exhausted and that it would cease defending the Port

13

in the Claims and Suits." National Union did not seek a judicial determination concerning

14

exhaustion.

15

The Port contested National Union's assertion that the two remaining Primary

16

Policies were exhausted. Moreover, even if they were exhausted, "the terms of the

17

Umbrella Policies would require National Union to drop down and defend the Port in the

18

Claims and Suits."

19

National Union "repeatedly disputed" any defense obligation under the Umbrella

20

Policies. However, on September 15, 2015, National Union acknowledged it "has a

21

defense obligation to defend [S]uits in accordance with the terms of its [U]mbrella

22
23
24
25

2

The California Supreme Court has explained that a "suit" means a "civil action
commenced by filing a complaint," and "[a]nything short of this is a 'claim."' Foster26 Gardner, Inc. v. Nat'! Union Ins. Co., 18 Cal. 4th 857, 878 (1998). A "claim" may be "a
27 demand for payment communicated in a letter, or a document filed to protect an injured
party's right to sue a governmental entity, or the document used to initiate a wide variety
28 of administrative proceedings." (Id. at 879.)
2
3: 15-cv-01401-BEN-MDD

1 Policies." Because ofNational Union's temporary cessation of defensive services, the Port
2 incurred additional defense costs.
3

The Port commenced the present action on June 25, 2015, and filed its FAC on

4 November 20, 2015, asserting five causes of action. On December 14, 2015, National
5 Union filed a Motion to Dismiss, Sever and Stay, which was denied. On July 20, 2016,
6 National Union submitted its Answer to the Port's FAC. The Port seeks a determination
7 that the Primary Policies have not been exhausted as claimed by National Union and that
8

it should have continued defending the Port until the Court or the Port agreed that the

9

remaining two Primary Policies were exhausted. National Union disagrees with the Port's

10

claims contending it has reimbursed all accrued defense fees and costs, and it maintains its

11

actions have been both reasonable and correct. National Union also believes that the Port

12

failed to cooperate as required under the policies because the Port withheld information

13

and deprived National Union of the right to participate in the settlement of certain lawsuits.

14

In preparation for trial, the parties filed several motions in limine to exclude

15

evidence. National Union filed fourteen motions in limine and the Port filed four. The

16

motions are fully briefed.

17
18

Upon consideration of the issues raised in the parties' briefings, the Court rules as
follows.

19

LEGAL STANDARD

20

A.

21

A court may make "a definitive ruling on the record admitting or excluding evidence,

22

either at or before trial." Fed. R. Evid. 103. Rulings on motions in limine fall entirely

23

within this Court's discretion. United States v. Bensimon, 172 F.3d 1121, 1127 (9th Cir.

24

1999) (citing Luce v. United States, 469 U.S. 38, 41-42 (1984)). The evidence is excluded

25

on a motion in limine only ifthe evidence is clearly inadmissible for any purpose. Fresenius

26

Med. Care Holdings, Inc., v. Baxter Int'!, Inc., No. C 03-1431 SBA (EDL), 2006 WL

27

1646113, at *3 (N.D. Cal. June 12, 2006).

28

evidentiary rulings should be deferred until trial to allow questions of foundation,

Standards for Motions in Limine

If evidence is not clearly inadmissible,

3
3:15-cv-01401-BEN-MDD

1 relevancy, and prejudice to be resolved in context. See Bensimon, 172 F.3d at 1127 (when
2

ruling on a motion in limine, a trial court lacks access to all the facts from trial testimony).

3

Denial of a motion in limine does not mean that the evidence contemplated by the motion

4

will be admitted at trial. (Id.) Instead, denial means that the court cannot, or should not,

5

determine whether the evidence in question should be excluded before trial. (Id.); see also

6

McSherry v. City ofLong Beach, 423 F.3d 1015, 1022 (9th Cir. 2005) (rulings on motions

7

in limine are subject to change when trial unfolds).
DISCUSSION

8
9

I.

10

National Unions' Motions in Limine

A.

11

Motion No. 1 - Evidence Supporting Breach of Contract Claim and
Sua Sponte Dismiss Breach of Contract Claim. (Doc. No. 122.)

12

Defendant seeks to preclude the Port from offering, testifying, or referencing

13

evidence regarding the Port's fourth cause of action for breach of contract, or, alternatively,

14

dismissing the fourth cause of action sua sponte on the grounds that it is now moot. (Defs'

15

MIL No. 1 at 2, Doc. No. 122.)

16

The Port contends that it incurred out of pocket legal fees in recovering the defense

17

costs which the Defendant should have been paying from January 2015 to January 2017.

18

(Pl.'s Opp. Dft. MIL No. 1 at 3, Doc. No. 148.) The Port seeks to offer evidence and

19

testimony that Defendant's resumption of its defense duties in no way cured its breach of

20

the Policies. (Id. at 1.) The Port's opposition also addresses National Union's MIL No. 11

21

discussed below.

22

The motion is DENIED. The probative value of the evidence with respect to

23

National Union's action's regarding the Port's Breach of Contract Claim outweigh any

24

potential prejudice that may arise from its inclusion. The Court further finds it would be

25

inappropriate to sua sponte dismiss the Port's Breach of Contract Claim.

26

Ill

27

Ill

28

Ill
4
3: 15-cv-01401-BEN-MDD

1

B.

2

Motion No. 2 -The Port's Expert and Employee Witness Testimony.
(Doc. No. 130.)

3

Defendant next asks the Court to preclude the Port from introducing, referring or

4

commenting on evidence related to the District's consultants which have not previously

5

been produced. (Defs' MIL No. 2 at 2, Doc. No. 122.) The Port opposes the motion

6

contending that National Union's motion presents no evidence of any stated intention by

7

the Port to present previously unproduced evidence, nor does it identify any evidence

8 which it believes the Port will seek to introduce. (Pl.' s Opp. Dft. MIL No. 2 at 3, Doc. No.
9
10
11
12

148.)
The motion is DENIED. However, should the issue arise during trial, National
Union may request the Court to reconsider its holding on this motion.
C.

13

Motion No. 3 -Preclude Evidence of Alleged Bad Faith Conduct Released
by Prior Settlement Agreements. (Doc. No. 136.)

14

Defendant next seeks to preclude evidence of "bad faith" conduct released by

15

settlement agreements previously entered into by the parties. (Defs' MIL No. 3 at 2, Doc.

16

No. 136.) The Port opposes the motion contending that National Union mischaracterized

17

the scope of the bad faith release, alleging that it was limited to claims and defense cost

18

invoices specified within the settlement agreements. (Pl.'s Opp. Dft. MIL No. 3 at 3, Doc.

19

No. 154.)

20

The motion is DENIED. National Union fails to acknowledge under the terms of

21

the settlement agreement that the bad faith waiver applied only to conduct relating to the

22

payment of invoices specified in the settlement agreements and Exhibit A attached thereto.

23

Moreover, National Union fails to demonstrate how the evidence it seeks to preclude would

24

be unduly prejudicial, time-consuming, or confusing to the jury.

25

D.

Motion No. 4 - Preclude Evidence of claimed Brandt fees. (Doc. No. 137.)

26

Defendant seeks to preclude or limit the presentation of evidence or making

27

reference to the Port's claim for attorneys' fees and costs in this case, pursuant to the

28

decision in Brandt v. Superior Court, 37 Cal.3d 813 (1985). (Defs' MIL No. 4 at 2, Doc.
5

3: 15-cv-01401-BEN-MDD

1 No. 13 7.) The Port opposes the motion contending it submitted all evidence required under
2

the Brandt standard, thereby demonstrating compliance with this Court's June 7, 2017

3

Order regarding disclosure of Brandt evidence. (Pl.' s Opp. Dft. MIL No. 4 at 1, Doc. No.

4

155.)
The motion is DENIED. National Union's motion falls short of demonstrating the

5

6 Port did not comply with the Brandt standard or this Court's instructions pursuant to its
7 June 7, 2017 Order.
E.

8
9

Motion No. 5 - Preclude Litigation Conduct From Trial Evidence. (Doc.
No. 124.)

10

Defendant seeks to preclude evidence of its own litigation conduct based on

11

California Civil Code § 47 (b) and Fed. R. Evid. 501. (Defs' MIL No. 5 at 2, Doc. No.

12

124.) The Port opposes the motion contending it is unsettled whether the litigation

13

privilege of§ 47(b) applies to a carrier sued for bad faith (see Nies v. National Auto. &

14

Cas. Inc. Co, 199 Cal. App.3d 1192, 1203, n. 7 (1988)). Even assuming the general

15

applicability of the privilege, it has no application to the matters identified by National

16

Union. (Pl.' s Opp. Dft. MIL No. 5 at 2, Doc. No. 142.)

17

The motion is GRANTED in part and DENIED in part. National Union's motion

18

is denied as to evidence or testimony referencing the fact that National Union did not file

19

an action for declaratory relief and obtain a judicial declaration in its favor prior to

20

terminating coverage. The motion is granted as to any other evidence, testimony, or

21

reference of litigation conduct.

22

F.

23

Motion No. 6 -Preclude Any Testimony by the Port's Witness Randa
Coniglio. (Doc. No. 131.)

24

Defendant withdraws its Motion in Limine No. 6. (Defs' MIL No. 6 at 1, Doc. No.

25

137.) National Union and the Port reached an agreement that National Union would

26

withdraw its objection to the Port calling Randa Coniglio as a witness, and the Port would

27

not object to the addition of Martin Eide to National Union's list of trial witnesses. (Id. at

28

2.)
6

3:15-cv-01401-BEN-MDD

The Court DENIES as MOOT/WITHDRAWN, Defendant's Motion in Limine

1
2

No. 6.

3

G.

4

Motion No. 7 - Preclude from Evidence the "Chartis U.S. Domestic Legal
Compliance Manual." Port Trial Exhibit 229. (Doc. No. 135.)

5

Defendant seeks to preclude from use at trial the document entitled "Chartis U.S.

6

Domestic Legal Compliance Manual" because it lacks foundation, is not a claims handling

7

manual, it is irrelevant, immaterial, and more prejudicial than probative under FRE 403.

8

(Defs' MIL No. 7 at 2, Doc. No. 135.)

9

The Port opposes the motion contending the following four points: First, the Claims

10

Manual is not irrelevant because whether National Union implemented and maintained

11

reasonable claims handling standards is at issue because the existence of guidance for

12

claims managers is an enumerated element of the unfair claims handling guidelines

13

acknowledged in the Claims Manual itself. (Pl.'s Opp. Dft. MIL No. 7 at 1, Doc. No. 160.)

14

Second, National Union cannot contest the Claims Manual authenticity because a party-

15

opponent cannot produce a company document and later challenge that same document's

16

authenticity. (Id.) Third, the Claims Manual is not likely to create confusion because the

17

contents and language speak for themselves and make it clear that it is a claim handling

18

manual including a specific section devoted to "Claims Practices." (Id.) Fourth, despite

19

not producing the Claims Manual until the Court compelled National Union to do so after

20

the close of discovery, National Union's witnesses were asked about claims handling

21

manuals, including this Claims Manual, during depositions. (Id.)

22

This Court RESERVES RULING on National Union's motion to preclude the

23

document entitled "Chartis U.S. Domestic Legal Compliance Manual," Port Trial Exhibit

24

229 until trial.

25

Ill

26

Ill

27

Ill

28
7
3: 15-cv-01401-BEN-MDD

1

H.

Motion No. 8 - Preclude Evidence and Argument from the Port Disputing
the Archived Losses. (Doc. No. 141.)

2

Defendant seeks to preclude the Port from offering evidence or testimony disputing

3

4 the admissibility of National Union's archived losses as depicted on the Loss Run records

5 (from the 1980s) pursuant to the ancient document rule and lack of contradictory evidence.
6

(Defs' MIL No. 8 at 2, Doc. No. 142.)
The Port opposes the motion contending the entries on the Loss Runs are the

7

8 evidence upon which National Union relies to support its argument that the two policies at
9

issue in this action, policy SMP 8002392 and GLA 500110 are exhausted. (Pl.'s Opp. Dft.

10

MIL No. 8 at 1, Doc. No. 158.) The Port's opposition also addresses National Union's

11

MIL No. 9 discussed below.

12
13

The motion is DENIED, subject to the Port laying the proper foundation and
addressing any privilege objection raised at trial.

14

I.

15

Motion No. 9 - Preclude Testimony and Evidence of Payments to Indemnify
Five Matters. (Doc. No. 147.)

16

Defendant seeks to preclude the Port from offering evidence or testimony disputing

17

the admissibility and validity of five specified pre-2001 indemnity payments made by

18

National Union as depicted on the Loss Runs. (Defs' MIL No. 9 at 2, Doc. No. 147.)

19

The Port opposes the motion, contending the entries on the Loss Runs which are the

20

evidence upon which National Union relies upon for its position that the two policies at

21

issue in this Action, policy SMP 8002392 and GLA 500110 are exhausted. (Pl.' s Opp. Dft.

22

MIL No. 9 at 1, Doc. No. 158.)

23

The motion is DENIED, subject to the Port laying the proper foundation and

24

addressing any privilege objection raised at trial.

25

Ill

26

Ill

27

Ill

28

Ill
8

3: 15-cv-01401-BEN-MDD

1

2

J.

Motion No. 10 -To Bifurcate the Amount of Punitive Damages and to
Preclude Evidence of National Union's Wealth. (Doc. No. 145.)

3

Defendant seeks to bifurcate the damages phase of the punitive claim and preclude

4

evidence of financial condition until preliminary criteria are established. (see Defs' MIL

5 No. 10, Doc. No. 145.)
6

The Port opposes the motion contending bifurcating the punitive damage claim from

7 the rest of the trial would be against judicial economy and would prejudice the Port by
8 prohibiting it from introducing evidence ofNational Union's financial condition in support
9

of its punitive damages claim. (Pl.'s Opp. Dft. MIL No. 10 at 1, Doc. No. 157.)

10

Under Rule 42(b) of the Federal Rules of Civil Procedure, the Court may order

11

separate trials for one or more separate issues or claims "[f]or convenience, to avoid

12

prejudice, or to expedite and economize .... " To determine whether to order bifurcation,

13

courts generally look to whether bifurcation will promote "'efficient judicial

14

administration,' considering such factors as convenience, prejudice to the parties,

15

simplification of discovery and conservation of resources, the risk of jury confusion, and

16

separability of the issues." Medtronic Minimed Inc. v. Animas Corp., No. CV 12-04471,

17

2013 WL 3233341, at *1 (C.D. Cal. June 25, 2013) (citing Pinal Creek Grp. v. Newmont

18

Mining Corp., 218 F.R.D. 652, 654 (D. Ariz. 2003) and Mformation Techs., Inc. v.

19

Research in Motion Ltd., No. C 08-04990, 2012 WL 1142537, at* 1 (N.D. Cal. March 29,

20

2012)). And "[b]ecause bifurcation rests in principles of judicial economy, additional

21

considerations include (1) whether the evidence offered in the proposed phases will

22

overlap, and (2) whether bifurcation will permit deferral of costly and possibly unnecessary

23

proceedings pending resolution of potentially dispositive preliminary issues." J2 Glob.

24

Commc'ns, Inc. v. Protus IP Sols., No. CV 06-00566, 2009 WL 910701, at *2 (C.D. Cal.

25

Mar. 31, 2009) (quotations omitted) (citing Hangarter v. Provident Life & Acc. Inc. Co.,

26

373 F.3d 998, 1021 (9th Cir. 2004); Jinro America, Inc. v. Secure Investments, Inc., 266

27

F.3d 993, 998 (9th Cir. 2001)).

28
9

3: 15-cv-01401-BEN-MDD

1

"Bifurcation is particularly appropriate when the resolution of a claim or issue might

2

dispose of the entire case." Renfrow v. Redwood Fire & Cas. Ins. Co., 288 F.R.D. 514, 523

3

(D. Nev. 2013). But the Court has "discretion to subdivide the case in whatever manner

4

seems dictated by the circumstances" (Rivera v. Nibco, Inc., No. CIVF-99-6443, 2006 WL

5

845925, at *5 (E.D. Cal. Mar. 31, 2006) (quotations omitted)), and bifurcation "is the

6

exception rather than the rule of normal trial procedure" within the Ninth Circuit. Clark v.

7 I.R.S., 772 F. Supp. 3d 1265, 1269 (D. Haw. 2009) (citing Hangarter, 373 F.3d at 1021).
8

In this case, bifurcation into two jury trials will necessarily complicate and delay this

9

proceeding, and the Court concludes Defendant's proposal does not outweigh bifurcation's

10

disruptive effect. Accordingly, the Court DECLINES to bifurcate the trial as proposed by

11

National Union. The motion is DENIED.

12

K.

Motion No. 11 -Preclude Evidence of Bad Faith and Breach of the

13

Covenant of Good Faith and Fair Dealing. or in the alternative, to Dismiss

14

the Fifth Claim sua sponte. (Doc. No. 143.)

15

Defendant moves (1) to preclude referencing the Port's cause of action for bad faith

16

and breach of the covenant of good faith and fair dealing based on the Genuine Dispute

17

Doctrine, or, alternatively, dismissing that cause of action sua sponte on the grounds that

18

any such claim is now moot; (2) to prohibit all parties from offering any evidence of,

19

referring to, or commenting in any way on the statements contained within; and (3)

20

precluding all parties from making any reference to the fact that this motion has been filed

21

and/or granted for any purpose other than to enforce the Court's order on this motion.

22

(Defs' MIL No. 11 at 2, Doc. No. 143.)

23

The Port contends it incurred out of pocket legal fees in recovering the defense costs

24

which National Union should have been paying from January 2015 to January 2017. (Pl.'s

25

Opp. Dft. MIL No. 11 at 2, Doc. No. 148.) Moreover, National Union's reliance upon the

26

genuine dispute doctrine to dismiss the Port's cause of action for breach of the implied

27

covenant of good faith and fair dealing is misplaced due to National Union's abandonment

28
10
3:15-cv-01401-BEN-MDD

1 of the Port's defense which is directly contrary to clear authority regarding how a carrier
2

must proceed ifthere is a dispute about exhaustion. (Id.)

3

The motion is DENIED. The probative value of the evidence with respect to

4

National Union's actions regarding the Port's Bad Faith Claim outweighs any potential

5

prejudice that may arise. The Court further finds it would be inappropriate to sua sponte

6

dismiss the Port's Bad Faith Claim.

7

L.

Motion No. 12 -Preclude Evidence that National Union Waived the

8

Attorney-Client Privilege, etc. Regarding Ms. Campbell's Testimony. (Doc.

9

No. 144.)

10

Defendant seeks to preclude the Port from offering evidence or referring to National

11

Union's assertion of waiver of the attorney-client privilege and disputing the right of a

12

witness to make corrections to a deposition transcript. (Defs' MlL No. 12 at 2, Doc. No.

13

144.)

14

The Port opposes the motion contending it has not designated any testimony from

15

Wanda Smith-Campbell's deposition to which National Union makes a privilege objection.

16

(Pl. 's Opp. Dft. MlL No. 12 at 1, Doc. No. 156.) Moreover, the purpose of an errata is to

17

correct, not to contradict witness testimony. (Id.)

18

The motion is DENIED.

19

M.

20

Motion No. 13 - Preclude Testimony by the Port's Expert Witness Dom
Bishop. (Doc. No. 139.)

21

Defendant seeks to preclude the Port from offering or referencing testimony or the

22

expert report of the Port's Expert Witness Dom G. Bishop on the grounds that Mr. Bishop's

23

opinions consist of improper legal opinion, lack foundation and are without evidentiary

24

basis. (Defs' MIL No. 13 at 2, Doc. No. 139.)

25

The Port opposes the motion contending that National Union mischaracterizes Mr.

26

Bishop's opinions, labeling them legal conclusions when in fact they espouse no such legal

27

conclusion and instead relate to insurance industry customs and practices which in no way

28

invades the jury or Courts province. (Pl.'s Opp. Dft. MlL No. 13 at 1, Doc. No. 161.)
11

3: 15-cv-01401-BEN-MDD

1 Moreover, Mr. Bishop, as an insurance coverage expert, is permitted to rely on applicable
2

law and industry standards as well as his experience in forming an expert opinion as long

3

as it is grounded in the requisite foundation and evidentiary basis under the Federal Rules

4

of Evidence. (Id.)

5

The motion is GRANTED in part and DENIED in part. Although it is undisputed

6

that Mr. Bishop is an attorney and not a claims adjuster, it is entirely proper for an expert

7

to rely on the applicable law and industry standards in forming an opinion. The Port has

8

identified sufficient factual foundation for his opinion of whether an insurer "deviated from

9

industry standards [to support] a finding that they acted in bad faith (i.e. an ultimate issue

10

oflaw). Furthermore, Mr. Bishop's testimony and expert report will be helpful to the trier

11

of fact because it will provide a framework for understanding complex claims handling

12

practices involving insurance cases, including issues related to policy exhaustion and an

13

insurers' duty to defend its policyholder. National Union's motion is DENIED as to Mr.

14

Bishop's testimony and expert report. Testimony outside of the aforementioned subject

15

areas is inadmissible and National Union's motion is GRANTED as to evidence and

16

testimony which exceed these limited boundaries.

17
18

N.

Motion No. 14 -Preclude the Port's Expert Witness David L. Blount. (Doc.
No. 138.)

19

Finally, Defendant seeks to preclude the Port from offering testimony or the expert

20

report of Port's Expert Witness David L. Blount regarding his opinions of the motive, intent

21

and state of mind of Douglas Beal because Mr. Blount is not an engineer or geologist, and

22

the relevance of his opinions and expert report do not outweigh their prejudicial effect.

23

(Defs' MIL No. 14 at 2, Doc. No. 138.)

24

The Port opposes the motion contending that Mr. Blount's opinions go to industry

25

standards of what constitutes investigative versus remedial work in the context of

26

environmental clean-ups. (Pl.'s Opp. Dft. MIL No. 14 at 1, Doc. No. 162.) Moreover, Mr.

27

Blount's vast experience in the field of environmental clean-up and cost assessment for

28
12
3:15-cv-01401-BEN-MDD

1 associated work negates any concerns and outweigh any purported prejudicial effect that
2

may arise from the fact that he is not a licensed geologist or engineer. (Id.)

3

The motion is GRANTED in part and DENIED in part. National Union's motion

4

is DENIED as to Mr. Blount's testimony and expert report as to the industry practices

5

regarding what constitutes investigative versus remedial work in the context of

6

environmental clean-ups and assessing the related costs of such work. The motion is

7

GRANTED as to evidence and testimony that exceeds the aforementioned limited

8

boundaries.

9

II.

The Port's Motions in Limine

A.

10
11

Motion No. 1 -Exclude the Errata Sheet of Wanda Smith-Campbell. (Doc.
No. 120.)

12

The Port seeks to preclude Defendant from introducing into evidence Smith-

13

Campbell's errata sheet or from using the errata sheet to object to the Port's use ofSmith-

14

Campbell's videotaped deposition. (Pl.'s MIL No. 1 at 1, Doc. No. 120.)

15

Defendant opposes the motion contending that it is consistent with her corrections

16

to those several portions of her testimony that contained mistakes. (Defs' Opp. PL' s MIL

17

No. 1at2, Doc. No. 159.)

18

The motion is DENIED.

19

B.

20

The Port seeks to preclude Defendant from introducing expert opinion testimony of

21

experts John Goldwater, Philip R. Watters, and Albert L. McComas, pursuant to Federal

22

Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579

23

(1993). (Pl.'s MIL No. 2 at 1, Doc. No. 121.)

Motion No. 2 - Expert Opinion Testimony. (Doc. No. 121.)

24

Defendant opposes the Port's motion contending that it is an effort to undercut

25

National Union's defense before any of their expert witnesses offer any admissible opinion

26

testimony that will assist the trier of fact. (Defs' Opp. Pl.'s MIL No. 2 at 2-3, Doc. No.

27

168.)

28
13

3: 15-cv-O 1401-BEN-MDD

1

The motion is GRANTED in part and DENIED in part. The Port's motion is

2

GRANTED as to Expert Witness opinion testimony of Philip R. Watters because

3

according to his expert report, his opinion is based solely on Rimkus' subjective definitions

4

and standards of investigation costs and remediation costs. Moreover, it provides no basis

5

or insight into how the Rimkus' definitions of investigative versus remediation costs are

6

derived. Nor does it explain how or why the Rimkus' definitions are appropriate or how

7 they should be applied. Of note, Watters' concedes that neither California nor the EPA
8

uses Rimkus' phrase "contaminant mass" in any of their definitions of remediation activity.

9 Moreover, he admits that people within the environmental community do not use Rimkus'
10

definition of remediation as "activities that impact the contaminant mass at a site." (Id. at

11

11.)

12
13
14

15
16

The Port's motion is DENIED as to Expert Witness opinion testimony of John
Goldwater and Albert L. McComas.

c.

Motion No. 3 - Other Insurance Carrier Policies and Settlements Between
Port and Other Carriers and Third Parties. (Doc. No. 127.)

The Port seeks to exclude all testimony and evidence related to its insurance policies

17 with other insurance carriers and third parties on the grounds that such evidence is
18

irrelevant and conveying it to a jury would be highly improper and prejudicial even if the

19

court sustained an objection and instructed the jury not to consider such facts. (Pl.' s MIL

20

No. 3 at 1, Doc. No. 127.)

21

Defendant opposes the Port's motion contending that it is not based on actual facts

22

of the case, nor the underlying claims and suits at issue in this matter, but instead is founded

23

on mere imaginary motivations. (Defs' Opp. Pl.'s MIL No. 3 at 2, Doc. No. 167.)

24

The motion is DENIED. The probative value of the evidence with respect to

25

National Union's action's in regards its determination of exhaustion of the underlying

26

primary policies outweighs any potential prejudice that may arise. The Port framed this

27

Motion in Limine expansively without pointing to any specifics. At this point, there is no

28
14
3: 15-cv-01401-BEN-MDD

1

basis for excluding any specific evidence. However, should the situation change during

2

the trial, the Port may request the Court to reconsider its holding on this motion.

3

D.

4

Motion No. 4 - Confidential Status Report Communications. (Doc. No.
133.)

5

The Port seeks to preclude Defendant from introducing evidence, testimony or

6

referencing at trial confidential and privileged status reports as to third parties. (Pl.' s MIL

7

No. 4 at 1, Doc. No. 133.)

8

Defendant opposes the motion contending the Port's effort to preclude Defendant

9

from introducing defense counsel's status reports prepared in the underlying claims and

10

suits is based on a fundamental misunderstanding or misreading of Calif. Civil Code

11

section 2860( d) ("Section 2860( d)"), and its unsupportable position that the status reports

12

are not relevant to the instant action. (Defs' Opp. Pl.' s MIL No. 4 at 2, Doc. No. 163.)

13
14

The Court RESERVES ruling on the Port's Motion in Limine No. 4.

The

admissibility of the evidence and testimony will be determined at trial.

CONCLUSION

15
16

In summary, the Court rules as follows:

17

1.

The Court DENIES Defendant's Motion in Limine No. 1. (Doc. No. 122.)

18

2.

The Court DENIES Defendant's Amended Motion in Limine No. 2. (Doc.

19

No. 130.)

20

3.

The Court DENIES Defendant's Motion in Limine No. 3. (Doc. No. 136.)

21

4.

The Court DENIES Defendant's Motion in Limine No. 4. (Doc. No. 137.)

22

5.

The Court GRANTS in part and DENIES in part, Defendant's Motion in
Limine No. 5. (Doc. No. 124.)

23

24

6.

25

26
27

The Court DENIES as MOOT/WITHDRAWN, Defendant's Motion in
Limine No. 6. (Doc. No. 131.)

7.

The Court RESERVES RULING on National Union's Motion in Limine
No. 7 to preclude from evidence the document entitled "Chartis U.S.

28
15
3: 15-cv-01401-BEN-MDD

•

1

Domestic Legal Compliance Manual," Port Trial Exhibit 229 until trial.

2

(Doc. No. 135.)

3

8.

The Court DENIES Defendant's Motion in Limine No. 8. (Doc. No. 141.)

4

9.

The Court DENIES Defendant's Motion in Limine No. 9. (Doc. No. 147.)

5

10.

The Court DENIES Defendant's Motion in Limine No. 10. (Doc. No. 145.)

6

11.

The Court DENIES Defendant's Motion in Limine No. 11. (Doc. No. 143.)

7

12.

The Court DENIES Defendant's Motion in Limine No. 12. (Doc. No. 144.)

8

13.

The Court GRANTS in part and DENIES in part, Defendant's Motion in
Limine No. 13 as to the preclusion of testimony by the Port's Expert

9

Witness Dorn Bishop. (Doc. No. 139.)

10
11

14.

The Court GRANTS in part and DENIES in part, Defendant's Motion in

12

Limine No. 14 as to the preclusion of testimony by the Port's Expert

13

Witness David Blount. (Doc. No. 138.)

14

15.

The Court DENIES the Port's Motion in Limine No. 1. (Doc. No. 120.)

15

16.

The Court GRANTS in Part and DENIES in part, the Port's Motion in
Limine No. 2. (Doc. No. 121.)

16
17

17.

The Court DENIES the Port's Motion in Limine No. 3. (Doc. No. 127.)

18

18.

The Court RESERVES ruling on the Port's Motion in Limine No. 4. The

19

admissibility of the evidence and testimony will be determined at trial. (Doc.

20

No. 133.)

21

IT IS SO ORDERED.

22
23

DATED:

Octobe~8

24
25
26
27
28
16
3: 15-cv-01401-BEN-MDD