Toy v. American Family Mutual Insurance Company

Filing 282

ORDER REGARDING THE PARTIES' OBJECTIONS TO DESIGNATIONS OF DEPOSITION TESTIMONY OF BRUCE PROCTOR. By Judge Philip A. Brimmer on 2/14/14. (mfiel, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 12-cv-01683-PAB-MJW
GREGORY TOY,
Plaintiff,
v.
AMERICAN FAMILY MUTUAL INSURANCE COMPANY,
Defendant.
_____________________________________________________________________
ORDER REGARDING THE PARTIES’ OBJECTIONS
TO DESIGNATIONS OF DEPOSITION TESTIMONY OF BRUCE PROCTOR
_____________________________________________________________________
This matter comes before the Court on Plaintiff’s Objections to Defendant
American Family Mutual Insurance Company’s Counter Designations [Docket No. 182-1
at 3-4] and American Family’s Objections and Counter Designations [Docket No. 171 at
8-12] as to Bruce Proctor.
The Court rules as follows on plaintiff’s objections:
Item Testimony
#
1
7:18 – 8:2
2.
13:23 – 14:24
3.

53:23 – 54:5

Plaintiff’s Objections
No objection
F.R.E. 602; testimony calls for speculation;
not required by Fed. R. Civ. P. 32(a)(6)
Answer is nonresponsive; F.R.E. 403; not
required by Fed. R. Civ. P. 32(a)(6)

Ruling

Sustained. Rule
32(a)(6).
Sustained. Rule
32(a)(6).

4.

63:15 – 63:19

F.R.E. 403; 404(b) and will “open the door” to
Defendant’s other acts contradicting claimed
“history of paying claims and having excellent
claims service,” including numerous lawsuits
alleging bad faith; not required by Fed. R.
Civ. P. 32(a)(6)

5.
6.

66:21 – 66:23
76:20 – 77:2

7.
8.
9.

82:12 – 82:17
85:17 – 86:23
96:21 – 97:15

10.
11.
12.
13.

106:9 – 106:14
111:1 – 111:6
112:1 – 112:13
115:2 – 116:8

14.
15.
16.

141:20 –
142:21 – 143:2
151:2 – 151:12

17.

163:15 –
163:21

18.

170:10 – 171:2

No objection
Answer is nonresponsive; F.R.E. 403; not
required by Fed. R. Civ. P. 32(a)(6)
No objection
Not required by Fed. R. Civ. P. 32(a)(6)
Answer is nonresponsive; F.R.E. 403; not
required by Fed. R. Civ. P. 32(a)(6)
No objection
No objection
No objection
F.R.E. 403; not required by Fed. R. Civ. P.
32(a)(6)
No objection
No objection
F.R.E. 403; not required by Fed. R. Civ. P.
32(a)(6)
F.R.E. 403; not required by Fed. R. Civ. P.
32(a)(6); if this portion of the deposition is
presented, Plaintiff counter-designates
163:22 – 164:15.
F.R.E. 403; not required by Fed. R. Civ. P.
32(a)(6)

As to 63:1563:17 (through
“settlements”),
overruled. As to
63:17(beginning
with “You
know”),
sustained. Rule
32(a)(6).
Sustained. Rule
32(a)(6).
Overruled.
Overruled.

Overruled.

Overruled.
Sustained

Overruled.

The Court rules as follows on defendant’s objections:
Testimony

Defendant’s Objections

Ruling

16:4 – 17:6

Leading, mischaracterizes the evidence

21:11-22:22

Leading, calls for speculation

Overruled. Also,
objections waived.
Overruled. Also,
objections waived.

2

23:2 – 24:9

Leading, misleading, misstates the law,
improperly instructs the jury on the law, does
not specify relevant timeframe

Overruled. Also,
form objections
waived.

24:8 – 24:11

Leading, misleading, misstates the law,
improperly instructs the jury on the law, does
not specify relevant timeframe

Overruled.

24:17 – 25:14

Leading, misleading, misstates the law,
improperly instructs the jury on the law, does
not specify relevant timeframe

Overruled. Also,
form objections
waived.

26:1 – 28:7

Leading, misleading, misstates the law,
improperly instructs the jury on the law, does
not specify relevant timeframe

Overruled. Also,
form objections
waived.

28:5 – 28:15

Leading, calls for speculation

Overruled.

28:16 – 28:20

Leading, calls for speculation

Overruled.

33:22 – 34:12

Relevance, “fairness” is not the relevant legal
standard

46:20 – 47:7

Relevance

As to 33:22-34:04,
overruled. As to
34:05-34:12,
sustained. Vague.
Overruled.

48:5 – 49:15

Relevance, the question contains hearsay

Overruled.

49:19 – 50:22

Overruled.

61:24 – 62:9

Relevance, lack of foundation, the question
contains hearsay
Relevance, calls for speculation

62:11 – 62:17

Relevance

Overruled.

63:1 – 63:14

Relevance, outside the scope of the notice,
does not specify the relevant timeframe

Overruled.

63:22-64:23

Relevance

Overruled.

67:5-8

Leading, misstates previous testimony

68:2 – 68:19

Relevance, the question contains hearsay

Overruled. Also,
form objection
waived.
Overruled.

3

Overruled.

Case 1:12-cv-01683-PAB-MJW Document 171 Filed 01/17/14 USDC Colorado Page 10 of 17

70:12 – 72:1

Leading

73:14 – 75:12

Relevance, the question contains hearsay

81:15-83

Relevance, does not specify the relevant
timeframe
Assumes facts not in evidence, leading

79:7-16
84:18 – 85:5

95:23 – 96:5

Relevance, not limited to the relevant
timeframe
Relevance, not limited to the relevant
timeframe
The question contains hearsay

97:16 – 99:2

The question contains hearsay, leading

99:3 – 101:2

The question contains hearsay

87:11 – 92:6

Overruled. Also,
form objection
waived.
Overruled.
Overruled.
Overruled. Also,
form objection
waived.
Overruled.
Overruled.
Overruled.
Overruled. Also,
form objection
waived.
Overruled.

101:3 – 102:21 Leading, assumes facts not in evidence, the
question contains hearsay, calls for
speculation

Overruled. Also,
form objections
waived.

102:23 – 104:2 Leading, calls for speculation

Overruled.
Objections waived.
Overruled.

109:4 – 110:25 Leading, the question contains hearsay
113:5 – 113:17 The question contains hearsay, misleading
in that only part of the statement is read

Overruled.

114:3 -6

The question contains hearsay, leading

114:7-10

Calls for speculation

Overruled. Also,
form objection
waived.
Sustained.

116:12 –
125:14

Leading, the question contains hearsay, calls Overruled. Also,
for speculation, calls for a legal conclusion, form objections
assumes facts not in evidence, calls for a legal waived.
conclusion

4

Case 1:12-cv-01683-PAB-MJW Document 171 Filed 01/17/14 USDC Colorado Page 10 of 17

128:9 -131:1

Leading, calls for speculation

Overruled. Also,
form objections
waived.
Overruled, except as
to 132:20-22, which
is sustained as
irrelevant. Also,
form objections
waived.
Overruled.

131:12 –
136:11

Leading, asked and answered, relevance,
argumentative

137:18 –
137:25

Leading, mischaracterizes the evidence,
assumes facts not in evidence, asked and
answered

138:16 –
141:19

Calls for a legal conclusion, lack of
foundation, harassing, asked and answered

Overruled. Also,
form objections
waived.

144:5 – 145:5

Argumentative, relevance (Mr. Toy did not
purchase the policy), assumes facts not in
evidence

145:8 – 147:7

Leading, the question contains hearsay

Overruled, except
as to 144:12144:19, which is
sustained as
irrelevant and
misleading.
Overruled.

147:18 – 148:5 Leading, calls for speculation,
Overruled.
mischaracterizes the evidence (Mr. Toy was
represented by a licensed attorney)
148:6 – 194:4 Calls for speculation, calls for a legal
[sic]
conclusion, relevance
149:14 - 150:12 Leading, calls for speculations, calls for a
legal conclusion, relevance

Overruled.

150:13 – 151:1 Leading, calls for speculation, calls for a
legal conclusion, relevance

Overruled.

151:13-152:8

Overruled.

Leading, calls for speculation, calls for a
legal conclusion, relevance

5

Overruled.

Case 1:12-cv-01683-PAB-MJW Document 171 Filed 01/17/14 USDC Colorado Page 10 of 17

153:15 – 154:9 Leading, the question contains hearsay

Overruled.

157:2 – 157:22 Leading, the question contains hearsay

Overruled.

160:8 -24

Calls for speculation, misstates the evidence, Overruled.
Mr. Toy was represented by an attorney who
was corresponding with American Family

160:25 – 161:5 Calls for speculation

Overruled.

161:9 – 163:7

Calls for speculation, leading, asked and
answered, assumes facts not in evidence,
the question contains hearsay

Overruled. Also,
form objections
waived.

166:5-166:8

The question is a violation of the Court’s Overruled.
previous orders, relevance

167:2-19

The question is a violation of the Court’s Overruled.
previous orders, relevance, calls for
speculation

172:14 – 174:4 Leading

Overruled. Objection
waived.
Overruled.

174:10 –
175:13
176:8-25

Calls for a legal conclusion, relevance,
leading
Misstates evidence, it was not Mr. Toy’s
policy, asked and answered

177:2-21

Calls for a legal conclusion, relevance

Overruled.

180:20 – 12

Leading

181:22 -182:8

Leading, assumes facts not in evidence,

Designation is
incomplete and
nonsensical.
Overruled.
Overruled.

6

Overruled.

Case 1:12-cv-01683-PAB-MJW Document 171 Filed 01/17/14 USDC Colorado Page 10 of 17

DATED February 14, 2014.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

7