Bruhn Farms Joint Venture v. Fireman's Fund Insurance Company
ORDER regarding Plaintiff's Motions in Limine 93 , 94 , 95 , 96 , 98 , and Defendant's Motions in Limine 100 , 101 , 103 , 104 , 105 , 106 , 107 , and 108 . See text of Order. Signed by Magistrate Judge CJ Williams on 02/27/2017. (jjh)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
BRUHN FARMS JOINT VENTURE,
ORDER ON MOTIONS IN LIMINE
FIREMAN’S FUND INSURANCE
Table of Contents
THE PARTIES’ GENERAL MOTIONS IN LIMINE .................................... 3
A. Golden Rule ...................................................................................... 3
B. Effects of Law Suits ............................................................................ 3
C. Money Tree Argument ......................................................................... 3
D. Reliance on Counsel ............................................................................ 4
E. Summary Judgment Ruling .................................................................... 4
F. Hail Claims Submitted by Plaintiff to Other Hail Insurance Companies .............. 4
G. Defense Expert Meek’s Personal Dealings with Bruhn ................................... 5
H. Field Notes ....................................................................................... 5
I. Timely Notice of Claims ....................................................................... 6
J. Fault of Plaintiff ................................................................................. 6
K. Prior Law Suits Involving Plaintiff or Al Bruhn ........................................... 7
L. Alleged Hearsay Statements of Al Bruhn ................................................... 7
M. References to Motions in Limine or Discovery Disputes................................. 7
N. Attempts to Compromise or Settle Case ..................................................... 9
O. Relative Wealth of Parties .................................................................... 12
P. Other Jury Verdicts ............................................................................ 12
PLAINTIFF’S MOTIONS IN LIMINE .................................................... 13
Drought .......................................................................................... 13
Defense Expert John Brown .................................................................. 14
Plaintiff’s Separate Multi-Peril Crop Insurance Policy .................................. 15
Defendant’s Use of Harvest Date for Staging of Plaintiff’s Crop ...................... 16
DEFENDANT’S MOTIONS IN LIMINE ................................................. 18
Report and Testimony of Bruce A. Babcock .............................................. 18
Evidence of Wealth of Defendant ........................................................... 20
Evidence of Plaintiff’s Alleged Emotional Distress ...................................... 21
Evidence of Plaintiff’s Claim for Common Law Attorneys’ Fees ..................... 21
Evidence of Defendant’s Parent Companies ............................................... 22
Allocation of Punitive Damages Award to Civil Reparations Fund ................... 24
Testimony of David Tritsch .................................................................. 24
CONCLUSION ................................................................................. 26
This matter is before the Court on the parties’ motions in limine. On February 3,
2017, each party filed multiple motions in limine. Plaintiff filed a “general” motion in
limine regarding a dozen topics (Doc. 93), and four additional motions in limine
concerning drought (Doc. 94), defense expert John Brown (Doc. 95), plaintiff’s separate
multi-peril crop insurance policy (Doc. 96), and a defendant’s use of harvest date for
staging of plaintiff’s crops (Doc. 98). Defendant filed seven separate motions in limine
regarding plaintiff’s expert Bruce A. Babcock (Doc. 100), defendant’s wealth (Doc. 101),
plaintiff’s alleged emotional distress (Doc. 103), plaintiff’s claim for common law
attorneys’ fees (Doc. 104), defendant’s parent companies (Doc. 105), the allocation of
punitive damages to the civil reparations fund (Doc. 106), the testimony of David Tritsch
(Doc. 107), and a general motion in limine regarding another four topics (Doc. 108).
The Court granted the parties’ request for additional time to file resistances to the various
limine motions. The motions are now fully briefed and ready for decision.
For the reasons that follow, the Court grants in part, denies in part, and holds in
abeyance in part, the parties’ various motions in limine.
THE PARTIES’ GENERAL MOTIONS IN LIMINE
The parties each filed “general” motions in limine.
The Court will address
separately the issues raised by the parties in their general motions in limine.
Both parties seek an order barring the opposing side from suggesting the jury
should decide the case based on how it will affect their own lives, sometimes referred to
as the “golden rule.” (Doc. 93, at 1; Doc. 108-1, at 2). The motions are granted.
Neither party may suggest the jurors should place or imagine themselves in the role of
one of the parties, or otherwise decide the case on how it might conceivably affect the
Effects of Lawsuits
Plaintiff seeks an order in limine barring counsel or witnesses from testifying about
or making comments regarding the effect law suits have on people or society generally.
(Doc. 93, at 2-3). Plaintiff asserts, however, that its motion is not intended to limit the
court or counsel from (1) obtaining the opinions of prospective jurors about lawsuits, or
(2) limit the parties from commenting on the reasons and justification for punitive
damages. (Doc. 93, at 3). Defendant does not object to this motion. (Doc. 128, at 1).
Accordingly, plaintiff’s motion is granted. Neither party may discuss or comment on the
effects of law suits.
Money Tree Argument
Plaintiff seeks an order barring defendant from referencing “annuity contracts
and/or how much could be earned with a sum of money if it were invested at the present
time.” (Doc. 93, at 3-4). Defendant does not object to this motion. (Doc. 128, at 1).
Accordingly, plaintiff’s motion is granted. Neither party may discuss or comment on
annuity contracts or the time value of money.
Reliance on Counsel
Plaintiff seeks an order barring defendant from referencing reliance “on advice
of counsel in making decisions concerning Plaintiff’s crop-hail insurance claim.” (Doc.
93, at 4). Defendant does not object to this motion. (Doc. 128, at 1). Accordingly,
plaintiff’s motion is granted. Neither party may discuss or comment on reliance of
Summary Judgment Ruling
Plaintiff seeks an order barring defendant from referencing “the fact that
Defendant’s Summary Judgment filing was originally granted by the District Court.”
(Doc. 93, at 4-5). Defendant does not object to this motion. (Doc. 128, at 1-2).
Accordingly, plaintiff’s motion is granted. Neither party may discuss or comment on
the summary judgment motion. That means that neither party may mention the filing of
a motion for summary judgment, the district court granting the motion, or the Eighth
Circuit Court of Appeals’ decision reversing the district court’s decision.
Hail Claims Submitted by Plaintiff to Other Hail Insurance Companies
Plaintiff seeks an order barring defendant from referencing plaintiff’s submission
of hail loss claims made to other insurance companies both before and after the 2012
loss at issue in this trial. (Doc. 93, at 5-6). Defendant resists this portion of plaintiff’s
general motion in limine, arguing that “said evidence may be probative to issues as to
the standard procedures utilized by the Plaintiff in the submission and handling of crop
hail claims” and “may be appropriate for purposes of impeachment.” (Doc. 128, at 2).
Neither side fully briefed this issue. The Court is not in a position, with such scant
information provided by the parties, to assess what evidence may be offered, whether
that evidence is similar to the insurance claim at issue, or whether it would have any
bearing on proper impeachment. The Court cannot rule on the admissibility of
evidence in a vacuum, based on vague and general descriptions of categories of
evidence. Accordingly, the Court holds in abeyance any ruling on this portion of
plaintiff’s motion in limine.
Defense Expert Meek’s Personal Dealings with Bruhn
Plaintiff seeks an order barring defendant from referencing any prior relationship
“Mr. Bruhn” (presumably Al Bruhn) had with defense expert Greg Meek. (Doc. 93, at
6). Plaintiff explains that Meek once worked for defendant and had “previous
experience with Mr. Bruhn.” (Id.). Defendant objects to this portion of plaintiff’s
motion, arguing that “said evidence may be probative to issues as to the standard
procedures utilized by the Plaintiff in the submission and handling of crop hail claims”
and “may be appropriate for purposes of impeachment.” (Doc. 128, at 2). Neither
side fully briefed this issue. The Court is again not in a position, with such scant
information provided by the parties, to assess what evidence may be offered, whether
that evidence would be probative of any issue, or whether it would have any bearing on
proper impeachment. Accordingly, the Court holds in abeyance any ruling on this
portion of plaintiff’s motion in limine.
Plaintiff seeks an order barring defendant from referencing “other field notes
that exist or once existed concerning the adjustment of Plaintiff’s claims.” (Doc. 93, at
6-7). Plaintiff argues that defendant has previously represented that it produced all
existing field notes and therefore should not be able to claim that others existed. (Id.).
Defendant objects to this portion of plaintiff’s general motion limine, arguing that this
is “an issue of fact that should be before the jury.” (Doc. 128, at 2). Defendant claims
that “testimony by Galen Sorenson established that he was only able to locate certain
notes and that he was unaware of where other field notes were presently.” (Doc. 128,
at 2). Again, the Court has little actual evidence in front of it from which to render an
informed decision. The Court therefore holds in abeyance any ruling on the
admissibility of evidence of the possibility other field notes existed. On the other hand,
defendant has allegedly produced to plaintiff all extant field notes. Defendant will not
be permitted, therefore, to produce additional field notes as evidence at trial because it
has not produced them during discovery.
Timely Notice of Claims
Plaintiff seeks an order barring defendant from referencing or suggesting that
plaintiff “did not give timely notice of the claims under the policy for the 2012 year.”
(Doc. 93, at 7). Plaintiff argues that defendant “waived any such defense and has
previously represented in discovery responses that Plaintiff did no wrong in this
matter.” (Id.). Defendant resists this portion of plaintiff’s general motion in limine,
arguing that “Plaintiff did not comply with the time restrictions for submission of the
claim as required under the terms of the crop hail policy” and that defendant’s
acceptance of the loss, despite plaintiff’s failure to make a timely claim, is relevant to
the issue of whether defendant “acted with bad faith or with willful and wanton
disregard for the rights of another.” (Doc. 128, at 3). To the extent plaintiff pursues a
claim for punitive damages against defendant, then it brings into play the totality of
defendant’s conduct in handling plaintiff’s claim, including whether defendant
processed plaintiff’s loss claim even though it was not filed in a timely manner.
Accordingly, plaintiff’s motion in limine in this regard is denied.
Fault of Plaintiff
Plaintiff seeks an order barring defendant from referencing or suggesting “that
Plaintiff did or did not do anything giving rise to fault.” (Doc. 93, at 7-8). Defendant
does not object to this motion. (Doc. 128, at 3). Accordingly, plaintiff’s motion is
granted. Neither party may discuss or comment on claims that plaintiff was negligent.
This does not prohibit admission of evidence, as noted above, that plaintiff did not file
a timely claim.
Prior Law Suits Involving Plaintiff or Al Bruhn
Plaintiff seeks an order barring defendant from referencing prior lawsuits filed
by plaintiff, either “individually” (presumably in reference to individual partners) or as
“a corporate entity: (presumably meaning as a partnership). (Doc. 93, at 8).
Defendant does not object to this motion. (Doc. 128, at 3). Accordingly, plaintiff’s
motion is granted. Neither party may discuss or comment on prior lawsuits involving
plaintiff or Al Bruhn.
Alleged Hearsay Statements of Al Bruhn
Plaintiff seeks an order barring defendant from referencing or suggesting that
“Plaintiff has made statements such as an instruction to adjusters not to inspect or adjust
certain soybean fields.” (Doc. 93, at 8). Plaintiff, of course, is a partnership.
Plaintiff clearly means to reference Al Bruhn. Plaintiff concedes that a statement by Al
Bruhn is a statement by a party opponent and therefore does not come within the
definition of hearsay. See FED. R. EVID. 801(d)(2). Plaintiff insists, however, that “a
statement from someone else claiming that Al Bruhn said something is not” a statement
of a party opponent. (Doc. 93, at 9). Defendant indicates that it is not in a position to
respond to this motion as it is “unsure of the specific statement” at issue. The Court is
equally unaware of exactly what testimony plaintiff is referencing, and therefore must
hold in abeyance any ruling on this portion of plaintiff’s motion in limine. Suffice it to
say, however, that if a witness takes the stand and testifies that Al Bruhn made a
statement relevant to the issues in dispute in this lawsuit, that testimony would not
constitute hearsay because it would constitute a statement of a party opponent, under
Reference to Motions in Limine or Discovery Disputes
Defendant seeks an order barring plaintiff from referencing defendant’s motion
in limine and any discovery disputes on the ground that they are irrelevant, citing
Federal Rule of Evidence 402. (Doc. 108-1, at 2). Plaintiff does not resist this motion
insofar as it relates to the motion in limine and is equally binding on both parties.
(Doc. 122, at 1). Accordingly, the Court grants that portion of defendant’s general
motion in limine.
Plaintiff does resist this motion in limine to the extent it seeks to bar mention of
discovery disputes in this case, asserting that the failure of a party to identify a witness
or document in a disclosure statement would be admissible, citing the Advisory
Committee notes from the 1993 amendments to Federal Rule of Civil Procedure 37.
(Doc. 122, at 1). Plaintiff argues that defendant’s motion is also deficient in that it fails
to identify specific discovery disputes, citing Rattray v. Woodbury County, Iowa, 761
F. Supp.2d 836, 842 (N.D. Iowa 2010), and Kuiper v. Givaudan, 602 F. Supp.2d 1036
(N.D. Iowa 2009). (Doc. 122, at 2). The Court is unable at this time to determine the
admissibility of any evidence regarding a party’s production or failure to produce
documents or otherwise comply with discovery requests as no specific dispute or
evidence has been identified. Nevertheless, whether or not the parties filed motions to
compel, and the Court’s rulings on those motions to compel, are not relevant to any
matter at issue in this trial (FED. R. EVID. 402) and to the extent it might have some
probative value, it would be substantially outweighed by the danger of misleading and
confusing the jury (FED. R. EVID. 403). Therefore, neither party will be allowed to
discuss or introduce evidence of motions to compel or other motions related to
discovery disputes, nor the Court’s orders ruling on those motions. To the extent a
party seeks to offer evidence regarding whether and when a party produced documents
or information in relation to a discovery dispute, the Court will hold in abeyance its
ruling regarding the admissibility of that evidence until it knows exactly what evidence
is being offered and the context in which it is being offered.
Attempts to Compromise or Settle Case
Defendant seeks an order barring plaintiff from referencing any attempts by the
parties to compromise or settle the case, citing Federal Rule of Evidence 408. (Doc.
108-1, at 2). Rule 408 provides:
(a) Prohibited Uses. Evidence of the following is not admissible—on
behalf of any party—either to prove or disprove the validity or amount
of a disputed claim or to impeach by a prior inconsistent statement or a
(1) Furnishing, promising, or offering—or accepting, promising to
accept, or offering to accept—a valuable consideration in
compromising or attempting to compromise the claim; and
(2) Conduct or a statement made during compromise negotiations
about the claim—except when offered in a criminal case and when
the negotiations related to a claim by a public office in the exercise
of its regulatory, investigative, or enforcement authority.
(b) Exceptions. The court may admit this evidence for another purpose,
such as proving a witness’s bias or prejudice, negating a contention of
undue delay, or proving an effort to obstruct a criminal investigation
Fed. R. Evid. 408. Plaintiff does not resist this motion “to the extent it seeks to limine1
any reference to the recent, failed mediation or any statements made during that
mediation.” (Doc. 122, at 3). Plaintiff does not define what it considers to be “recent”
mediation. Plaintiff resists to the extent the motion seeks to bar admission of what it
refers to as the “primrose path” evidence of defendant’s alleged delay in adjusting the
fields and settling the dispute over the payment. (Doc. 122, at 3-4).
In assessing this motion, it is helpful here to recount the parties’ attempts to
reach an agreement before plaintiff brought this suit, as summarized by the Eighth
Circuit Court of Appeals.
The Court assumes plaintiff is using the word “limine” to mean limit here. Limine is Latin for
“at the outset.” BLACK’S LAW DICTIONARY (7th Ed. 1999). It does not mean “limit,” an
Bruhn sustained a significant hail loss on September 11, 2012, and
reported that loss to RCIS. Adjustment of the loss was assigned to RCIS
adjuster Galen Sornson. Although the loss occurred in early September,
Bruhn had still not heard from RCIS or its adjusters in mid-October.
Accordingly, Bruhn requested and obtained approval from RCIS to
harvest its crops and leave check strips for the adjusters. Because the loss
potentially involved more than 5,000 acres, a six-person team was
assembled to work the loss. The team of adjusters did not arrive at the
Bruhn farm until October 29, 2012, more than a month after receiving
notice of the loss, during which time harvest had occurred and volatile
weather conditions persisted in Iowa. Indeed, according to Alan Bruhn
(Alan), a partner of Bruhn, weather conditions were cold and windy on
the two days that the adjusters were in the fields counting check strips,
and the adjusters spent a considerable amount of time in the barn and in
their trucks, trying to warm up. Bruhn’s expert opined that the adjusters
could not have spent a sufficient amount of time in the fields over those
two days to properly adjust a claim covering the number of acres over
which Bruhn had reported damage.
Nonetheless, the adjusters purportedly completed their counts using the
check strips that had been left in the fields and reported that sufficient
check strips were left in each field to complete the adjustment process.
According to their survey sheets, the adjusters determined that 4,120.5
acres of soybeans had payable hail losses. Based on the crop-hail lossadjustment procedures set forth in the respective National Crop Insurance
Services (NCIS) manuals, the RCIS adjusters found losses ranging from
2.3% to 71.4%. On October 30, Sornson completed the proof of loss for
the September 11 claim. Sornson attempted to meet with Alan to discuss
the claim on October 30 before leaving the Bruhn farm, but Alan was sick
and unable to meet. Sornson faxed a copy of the proof of loss to Alan on
November 5, 2012.
Bruhn did not agree with the adjusters’ calculations and Alan refused to
sign the proof of loss. Sornson’s supervisor conducted a review of the
Bruhn claim in late November 2012 and determined that the loss had been
properly adjusted in accordance with NCIS crop-hail procedures. On
November 28, 2012, despite Bruhn’s disagreement and without its
approval or Alan’s signature, RCIS issued payment to Bruhn for the
amount RCIS had determined was payable for the losses: $417,636 for the
loss, less a premium credit of $184,578, for a net payment of $233,058.
A check in that amount was delivered to Alan’s residence via FedEx on
December 4, 2012.
After the check was delivered, Alan directed his insurance agent, Terry
Nielsen, to inquire as to how he could dispute the paid amount. Nielsen,
in turn, contacted Rod Nelson, the manager of RCIS’s Regional Service
Office. According to Nielsen, Nelson suggested that in order to
reconsider the loss determination, the insurance company would look at
records of historical yields. It was Nelson’s recollection that Nielsen was
the one who suggested looking at historical yields, although Nelson
agreed in his deposition that looking at historical yield numbers would be
part of the process. The next incident of note occurred on December 15,
2012, when Nielsen inquired of Nelson about the status of the claim, and
Nelson responded via text message that they were “one drink away” from
settling Bruhn’s claim. However, when contacted the next day, Nelson
stated that there was nothing further RCIS could do with regard to
Following this news from Nelson, Alan met with Larry Burkhart, RCIS’s
Crop-Hail/Named Peril Field Claims Manager, on December 18, 2012.
During the meeting, Burkhart also advised Alan that he would conduct a
review of the claim and would, among other things, look at Bruhn’s
historical yields. Alan contended that his historical yield records would
result in a much higher payment. During the meeting, Alan contends
Burkhart told him to be patient while they gathered information and
considered the claim, because the claim had been mishandled. Nielsen
alleges that several weeks later, Burkhart advised him they were about
$25,000 apart on the claim, somewhere in the neighborhood of $900,000.
Nielsen relayed this information to Alan, who directed him to settle for
the lower number. However, when Nielsen contacted Burkhart to tell him
Alan was willing to take the lower number, Burkhart retreated, and
instead informed Nielsen that after reviewing the available information, he
concluded that RCIS’s original loss determinations were correct. On
January 25, 2013, Burkhart sent a letter to Bruhn indicating that RCIS had
completed the review and determined that the claim was properly adjusted
Bruhn Farms Joint Venure v. Fireman’s Fund Ins. Co., 823 F. 3d 1161, 1163 (8th Cir.
Given the nature of this dispute, evidence of the parties attempts to reach an
agreement on the adjustment of the crop loss is admissible up to a point because it is
relevant to plaintiff’s claim defendant acted in bad faith in adjusting plaintiff’s claim.
Evidence relating to defendant’s alleged delay in adjusting the fields is not subject to the
Rule 408 prohibition. Evidence regarding the parties’ attempts to an agreement up to
January 25, 2013, is similarly not barred by Rule 408. All subsequent attempts to settle
this dispute, however, are firmly covered by Rule 408. As this Court has previously
stated, the inadmissibility of “evidence of settlement negotiations is . . . obvious . . ..”
Rattray, 761 F. Supp.2d, at 841 n.3. The Court therefore grants defendant’s motion in
limine with respect to any settlement negotiations or attempts at mediation after filing of
this suit or in contemplation of this suit after January 25, 2013.
Relative Wealth of Parties
Defendant seeks an order barring plaintiff from referencing the parties’ relative
wealth, arguing it is irrelevant under Federal Rule of Evidence 402, and any probative
value is outweighed by prejudice to defendant, citing Federal Rule of Evidence 403.
(Doc. 108-1, at 2). Plaintiff resists this portion of defendant’s general motion in
limine, insisting that the wealth of a defendant is admissible for determining whether to
award punitive damages. (Doc. 122, at 4). Although that is true, the relative worth of
the parties is irrelevant to any issue. Accordingly, plaintiff’s wealth or lack thereof is
inadmissible at trial, as is any argument relating to the relative worth of the parties.
Therefore, the Court grants defendant’s motion in limine regarding the relative worth
of the parties.
Other Jury Verdicts
Defendant seeks an order barring plaintiff from referencing jury verdicts in other
cases, citing Federal Rule of Evidence 402. (Doc. 108-1, at 3). Plaintiff does not
resist this portion of defendant’s general motion in limine. (Doc. 122, at 5).
Therefore, it is granted. The parties are prohibited from discussing jury verdicts in
other cases in this or any other jurisdiction.
PLAINTIFF’S MOTIONS IN LIMINE
Plaintiff filed four additional motions in limine, each addressing a separate topic.2
The Court will address each in turn.
Plaintiff seeks an order barring defendant from referencing “drought . . . or any
purported reduction in yields or production associated with the same.” (Doc. 94, at 1).
Plaintiff argues that the reasoning behind this motion is similar to its motion regarding
its multi-peril insurance policy. (Doc. 94-1, at 1). Plaintiff argues that the insurance
policy prohibits consideration of drought, defendant’s representatives admitted that
drought is irrelevant, defendant’s representatives admitted that drought was not a factor
regarding the soybeans at issue, and defendant did not “evoke”3 the contractual nonwaiver procedure to asset drought as a defense. (Doc. 94). Defendant concedes that
“the policy at issue in this case does not cover drought” and only covers “direct damage
to plants caused by hail.” (Doc. 118, at 2). Defendant insists, however, that the 2012
crop yields are “very much at issue in this case” for two reasons. First, to the extent
plaintiff alleges that defendant acted in bad faith in reneging on an agreement to adjust
the payment based on yield loss, defendant argues the reason that adjustment did not
Defendant similarly filed separate, topic-specific motions in limine. The Court is at a loss to
understand why lawyers do this. It is a waste of paper. Plaintiff, for example, consumed at
least 13 pages of duplicative captions, motions, signature blocks and certificates of service, while
defendant consumed at least another 27 wasted pages. Nothing in the federal rules or local rules
suggest that parties should file separate motions in limine and briefs on specific issues. Indeed,
the parties filed “general” motions in limine that contained multiple issues divided by separate
headings. They could simply have added additional headings to these motions.
The Court assumes plaintiff meant “invoke.” “Evoke” generally means “to bring or recall to
the conscious mind,” while “invoke” generally means “to put into legal effect.”
occur was that “it discovered that yields did not provide a valid point of comparison due
to the effects of the drought.” (Doc. 118, at 3-4). Second, defendant claims that plaintiff
is seeking a 100% loss on 14 fields that it never inspected and, therefore, “it is certainly
pertinent to prove the yields that were harvested in those fields and that Plaintiff certified
that any yield reductions in those fields were cause by drought and not hail.” (Doc. 118,
at 2, 4-5).
It appears to the Court that, depending on what evidence plaintiff presents and
what arguments it makes at trial, it may very well make the issue of drought, and the
effect the drought had on the 2012 yield, relevant. The Court is not, however, in a
position in advance of trial to rule on the admissibility of this evidence until it hears
plaintiff’s evidence and is in a better position to assess the probative value of the drought
evidence against the danger that evidence may create to confuse or mislead the jury. It
is likely the Court will admit some evidence regarding the drought if responsive to
plaintiff’s evidence or argument, followed by a limiting instruction if requested. But the
Court reserves ruling on this evidence until trial.
Defense Expert John Brown
Plaintiff seeks an order barring defendant “from presenting any expert testimony
or reports from Defense Expert John Brown. Ph.D., to the extent his opinions attempt
to interpret and/or map weather data, or generally fall within the purview of matters
properly reserved for testimony by an expert meteorogist.” (Doc. 95, at 1). Plaintiff
invokes the Daubert standard, and asserts that Dr. Brown’s testimony fails to meet the
standard under Rule 702 of the Federal Rules of Evidence because plaintiff asserts he is
not qualified to render meteorological opinions. (Doc. 95-1, at 4-5). Defendant resists
this motion, asserting that Dr. Brown’s testimony is “the very type of testimony
contemplated by FED. R. EVID. 702 to assist the trier of fact and should be allowed.”
(Doc. 119, at 1). Defendant designated Dr. Brown as an expert to testify “regarding
the spatial distribution and impact of weather related events on the 2012 crops of
Plaintiff Bruhn Farms” using, in part, tools such as “infrared photography, satellite
imagery, NEXRAD date, USDA information, and NOAA weather reports.” (Doc.
119, at 2, 4). Dr. Brown has completed similar “investigative work and image analysis
for the United States Department of Justice, the United States Department of
Agriculture, the Risk Management Agency, and the United States Office of Inspector
General.” (Doc. 119, at 4).
In Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), the Supreme
Court emphasized that a trial court has a gatekeeping function to ensure that, among
other things, an expert has sufficient scientific, technical, or other specialized
knowledge to help the trier of fact to understand the evidence or to determine a fact in
issue. Plaintiff here does not allege Dr. Brown’s opinion was based on insufficient
facts or data, or suffered from a flawed methodology. The Court finds Dr. Brown’s
education and experience sufficient to qualify him to offer an opinion regarding a
subject beyond the scope of knowledge of a common juror and that his testimony could
be helpful to the trier of fact. To the extent plaintiff believes Dr. Brown’s lack of a
meteorological degree seriously detracts from the validity of his opinion, then it can
demonstrate that through vigorous cross-examination or the presentation of contrary
evidence. Daubert, 509 U.S. at 595–96. Therefore, the Court denies plaintiff’s
motion in limine in this regard; Dr. Brown’s expert testimony will not be excluded
pretrial on Daubert or Rule 702 grounds.
Plaintiff’s Separate Multi-Peril Crop Insurance Policy
Plaintiff seeks an order barring any reference to plaintiff’s “multi-peril crop
insurance policy, including any claim for or receipt of benefits under such policy, as
well as any documentation related to plaintiff’s actual crop production/yields in 2012.”
(Doc. 96). Plaintiff argues such evidence is irrelevant and therefore barred by Rule
402 of the Federal Rules of Evidence or, alternatively, any probative value is
“substantially outweighed by the resultant unfair prejudice upon Plaintiff, in addition to
confusing and misleading the jury.” (Doc. 96-1, at 2). Plaintiff asserts that “any
documentation setting forth Plaintiff’s 2012 crop production/yields, including, but not
limited to, Defendant’s Proposed Exhibits Y, AA, G, CC, GG, OO, QQ, RR, SS, ZZ,
AAA, BBB, CCC, DDD, and GG[G], is entirely irrelevant.” (Doc. 96-1, at 7).
Defendant resists this motion on the same grounds it resists plaintiff’s motion in
limine in relation to drought evidence. (Doc. 130). Defendant argues that plaintiff
“has placed its yields (both for 2012 and prior years) at issue in this case by claiming
that Defendant reached a post-adjustment agreement to review Plaintiff’s claim on the
basis of its yield loss and then committed bad faith by allegedly reneging on that
agreement.” (Doc. 130, at 2). Defendant also argues the yield evidence is relevant to
the extent plaintiff seeks 100% loss recovery on 14 fields not inspected by defendant for
which plaintiff made a claim under its multi-peril crop insurance policy asserting the
loss was caused by drought and not hail. (Doc. 130, at 2-3).
As with plaintiff’s motion in limine regarding drought evidence, the Court will
hold its ruling in abeyance pending the presentation of evidence at trial. As with the
drought evidence, it appears that plaintiff may very well place its yields into issue in
this case and that yield information is contained in claims plaintiff made under its multiperil crop insurance policy. On the other hand, the Court finds no basis for defendant
to present any evidence regarding the amount of any claim made or collected by
plaintiff on its multi-peril crop insurance policy. Accordingly, to that extent the Court
grants in part plaintiff’s motion in limine.
Defendant’s Use of Harvest Date for Staging of Plaintiff’s Crop
Plaintiff seeks an order barring “any reference to the date that Plaintiff harvested
any of his crops for the 2012 crop year in addition to any argument that [defendant] can
use any date of harvest for purposes of staging the crop at issue.” (Doc. 98). Plaintiff
anticipates that defendant “will attempt to utilize planting and harvest dates as points of
reference for purposes of staging maturity of [plaintiff’s] soybean crops at the time of
the September 2012 date of loss.” (Doc. 98-1, at 1). Plaintiff insists that the insurance
contract provides that only one of two dates can be used for adjusting any claim: (1) the
date of loss; or (2) the date of adjustment. (Doc. 98-1, at 2). Plaintiff argues that the
contract requires the “stage” of plaintiff’s crop was to be determined based off one of
these two dates as applied to a Time Interval Chart in the NCIS manual. (Doc. 98-1, at
2-4). Plaintiff anticipates that defendant will attempt to calculate the proper adjustment
based on the harvest date because it would result in a more favorable outcome for
defendant. (Doc. 98-1, at 1). Plaintiff alleges that defendant’s adjustment based on the
harvest date precluded coverage for defoliation of the plants, resulting in a lower loss
amount. (Doc. 98-1, at 6-7).
Defendant resists plaintiff’s motion, arguing that were the Court to bar such
evidence, it would mislead and confuse the jury. (Doc. 129, at 1). Defendant argues
that the hail damage occurred shortly before plaintiff harvested the crop, that a soybean
crop could not be harvested unless it had already reached a certain level of maturity,
and that that level would not include coverage for defoliation at that stage. (Doc. 129,
at 2). Defendant argues that its adjusters did not breach the contract by basing their
adjustment on the stage of plaintiff’s crops in the field, instead of based on the date of
adjustment. (Doc. 129, at 2-5). Defendant argues that propriety of the adjustment is a
fact issue for the jury to decide. (Doc. 129, at 5).
The Court agrees with defendant. Plaintiff alleges defendant breached the
insurance contract in part by basing its adjustment on the stage of plaintiff’s crop at the
time of harvest instead of, as plaintiff alleges it should have done, on the date of
adjustment with application to the Time Interval Chart. Plaintiff’s claim of bad faith is
similarly tied to how defendant adjusted the loss of its crop. How and why defendant
staged the loss of plaintiff’s crop, whether it violated the contract, and whether
defendant acted in bad faith in the manner in which it staged plaintiff’s crop, are all
questions for the jury to determine. The Court therefore denies plaintiff’s motion in
limine on this issue.
DEFENDANT’S MOTIONS IN LIMINE
Defendant filed seven motions in limine (in addition to its “general” motion in
limine), each addressing a separate topic. The Court will address each in turn.
Report and Testimony of Bruce A. Babcock
Defendant seeks an order barring “the expert report of Bruce A. Babcock as well
as any testimony from Dr. Babcock as to the matters contained in that report.” (Doc.
100, at 1). Defendant argues that “the entire substance of Dr. Babcock’s proposed
testimony concerns the accuracy and/or validity of damage calculations performed by
attorneys” for the parties.
Defendant argues that “the calculation and
communications related thereto are inadmissible under FED. R. EVID. 408.” Plaintiff
argues that “Defendant’s characterization of Expert Babcock is incorrect and misleading”
and that Babcock’s report “was not limited in scope to his analysis of settlement
calculations.” (Doc. 124, at 1). Plaintiff argues that Babcock’s opinions “are offered
not as commentary of settlement negotiations, but rather, the opinions are commentary
on the methodology of calculating the loss if yield is taken into consideration by the
parties.” (Doc. 124, at 2).
Although neither party has raised the issue, the Court begins its analysis with the
finding that an expert’s report is hearsay and is not admissible in evidence, unless a party
can establish an exception to the hearsay rule. See United States v. Lasley, No. 14–CR–
45–LRR, 2014 WL 6775539, at *6 (N.D. Iowa Dec. 2, 2014) (finding an expert’s written
report is hearsay and not admissible under the residual exception). See also Devorak v.
United States, Civ. No. 01–1415 (RHK/AJB), 2002 WL 34715899, at *2 (D. Minn. Oct.
30, 2002) (barring admission of written expert report as hearsay); Law v. Nat’l Collegiate
Athletic Ass’n, 185 F.R.D. 324, 342 (D. Kan. 1999) (stating that an expert’s written
report generally inadmissible); Engebretsen v. Fairchild Aircraft Corp., 21 F.3d 721,
728 (6th Cir. 1994) (“Rule 702 permits the admission of expert opinion testimony not
opinions contained in documents prepared out of court.”). Accordingly, the Court will
not admit the written report of any expert unless a party can lay a proper foundation for
an exception to the hearsay rule.
Regarding the substance of Mr. Babcock’s opinion, the Court has reviewed his
report (Doc. 100-2, at 4-5). It consists of his analysis of two attorneys’ loss calculations,
criticizing the method used by one attorney and finding the method used by the other
attorney proper. The Court cannot at this stage discern how Mr. Babcock’s analysis of
the loss calculations proposed as part of settlement negotiations has any relevance to any
issue in dispute at trial. Further, the Court is concerned that any attempt by Mr. Babcock
to testify is rife with the potential to violate Rule 408 because the context for his opinion
is premised on calculations made by an attorney in settlement negotiations. It is not
based, in contrast, for example, on calculations made by defendant as part of the
adjustment process in this case.
Plaintiff asserts that “[i]t has already been determined that the Primrose Path
evidence is admissible in this matter,” citing the Eighth Circuit Court of Appeal’s
decision in this case, and that Mr. “Babcock’s opinions go directly to the Primrose Path
issue in analyzing the aspect of the claim from the yield analysis standpoint, and the
approach of the parties at the time they agreed upon a yield analysis approach.” (Doc.
124, at 2). Nothing in the Eighth Circuit Court of Appeal’s decision in this case addressed
the admissibility of evidence in general, or the admissibility of this evidence in particular.
Rather, the Court’s opinion merely found that there was a genuine issue of fact that
precluded entry of summary judgment in favor of defendant. Moreover, Mr. Babcock’s
opinion does not relate to how defendant adjusted the claim; it relates to how an attorney
calculated loss in connection with settlement negotiations. Therefore, it has nothing to
do with the so-called Primrose Path issue.
Plaintiff argues that if the Court bars Mr. Babcock’s opinion, it would “lead to an
unfortunate, and frankly unreasonable rule that expert opinions that are used by Counsel
in negotiating a claim make those opinions inadmissible at trial.” (Doc. 124, at 2). It
does not lead to such a conclusion. Plaintiff was free to designate Mr. Babcock as an
expert and have him opine as to whether defendant properly adjusted the claim in this
case, or to testify more generally as to the calculation of loss based on a yield analysis.
What plaintiff is not free to do is introduce at trial evidence that a settlement offer was
unreasonable because the attorney’s loss calculation was flawed. Rule 408 bars such
Accordingly, the Court grants defendant’s motion in limine and bars Bruce A.
Babcock from testifying at trial.
Evidence of Wealth of Defendant
Defendant seeks to bar evidence of its wealth “unless and until the Court
determines Plaintiff has made a prima facie showing of liability for punitive damages.”
(Doc. 101). Defendant concedes that “[e]vidence of a defendant’s net worth is a relevant
factor in setting an amount of punitive damages” but argues that it is “wholly irrelevant
when determining an award of compensatory damages.” (Doc. 101-1, at 2). Plaintiff
resists defendant’s motion, arguing that “the Eighth Circuit has already held that a prima
facie case for bad faith, and in turn punitive damages, exists.” (Doc. 123, at 1). Invoking
the Law of the Case Doctrine, plaintiff argues that the Court is bound by that finding and
must admit the evidence. (Doc. 123, at 1-2).
Plaintiff reads way too much into the Eighth Circuit Court of Appeal’s decision.
The Eighth Circuit reversed this Court’s grant of summary judgment.
standard, a court must view the evidence in the light most favorable to the nonmoving
party, giving that party the benefit of all reasonable inferences that can be drawn from
the facts. Matsushita Electric Indust. Co., Ltd. V. Zenith Radio Corp., 475 U.S. 574,
587-88 (1986) (internal citation omitted). Pursuant to this favorable standard, the Eighth
Circuit in this case merely found that there was a genuine issue of material fact whether
defendant acted in bad faith. Bruhn, 823 F.3d at 1167. It is still for this Court to
determine, based on the evidence actually admitted at trial, whether plaintiff has
established a prima facie showing that defendant engaged in “willful and wanton”
conduct, exhibiting complete disregard for the plaintiffs’ rights.
Accordingly, until and unless the Court finds plaintiff has made that prima facie
showing, evidence of defendant’s financial condition is irrelevant (FED. R. EVID. 402)
and any probative value would be outweighed by the danger of unfair prejudice (FED. R.
EVID. 403). See Pfab v. United Wisconsin Ins. Co., No. C10–1024, 2012 WL 860321,
at *5 (N.D. Iowa Mar. 13, 2012) (“The Court agrees that evidence regarding United
Heardand’s financial condition may only be introduced after Pfab makes a prima facie
showing for recovery of punitive damages.”); Penford Corp. v. National Union Fire Ins.
Co., No. 09–CV–13–LRR, 2010 WL 2509985, at *5 (N.D. Iowa Jun. 17, 2010) (“The
court will not admit evidence of Defendants’ financial condition unless and until the jury
reaches a verdict that would support an award of punitive damages. In the event of such
a verdict, the Court will permit the parties to present further evidence and argument on
the issue of punitive damages.”).
Therefore, defendant’s motion in limine is conditionally granted; plaintiff must
seek leave of the court before it presents evidence or makes comment or argument
regarding defendant’s financial condition.
Evidence of Plaintiff’s Alleged Emotional Distress
Defendant seeks an order barring admission of evidence or argument relating to
claims of emotional distress on the ground that a partnership cannot suffer emotional
distress. (Doc. 103). Plaintiff concedes that this Court’s order granting defendant’s
motion to strike (Doc. 112) bars plaintiff from asserting a claim for emotional distress
and thereby renders this motion moot. (Doc. 121). Accordingly, the Court denies
defendant’s motion as moot.
Evidence of Plaintiff’s Claim for Common Law Attorneys’ Fees
Defendant seeks an order barring admission of evidence or argument relating to
claims for attorneys’ fees and expenses on the ground that “[t]he decision to award
common law attorneys’ fees lies within the equitable powers of the court” and therefore
should not be presented to the jury. (Doc. 104, 104-1, at 1-2). Plaintiff concedes that
this Court’s order granting defendant’s motion to strike (Doc. 112) bars plaintiff from
asserting a claim for emotional distress and thereby renders this motion moot. (Doc.
120). Accordingly, the Court denies defendant’s motion as moot.
Evidence of Defendant’s Parent Companies
Defendant seeks an order barring evidence “relating to the parent companies” of
Fireman’s Fund Insurance Company” (FFIC) on the grounds that it is not relevant and
highly prejudicial. (Doc. 105). Plaintiff sued FFIC claiming a breach of contract and
bad faith in processing its crop insurance claim. The claim was adjusted and paid by
Rural Community Insurance Agency, Inc. (d/b/a Rural Community Insurance Services
(RCIS)) on behalf of FFIC pursuant to a managing general agency agreement. Allianz
of America, Inc. (Allianz) is the parent company of FFIC. Wells Fargo Insurance, Inc.
(Wells Fargo) was the parent company of RCIS at the time of the adjustment of plaintiff’s
claim; currently Zurich American Insurance Company (Zurich) is RCIS’s parent
corporation. Defendant resists this motion, arguing that these parent companies are not
parties to the law suit and were not in any conduct giving rise to the suit. (Doc. 105-1,
at 1-2). Further, defendant argues that these are well-known companies, the “mere
mention” of which “has the strong potential to unfairly prejudice, confuse, and mislead
the jury into thinking that they are evaluating the conduct of these companies” and “may
also conclude mistakenly that the assets of the parent companies are relevant to this case
when they are not.” (Doc. 105-1, at 2-3).
Plaintiff resists this motion, arguing that “Wells Fargo will come up at trial
concerning issues such as: (1) Wells Fargo’s control over upper management’s
performance-based bonuses; (2) Wells Fargo’s training requirement of adjusters; and (3)
Wells Fargo’s document retention policy.” (Doc. 125, at 1-2). Plaintiff further argues
that “the issues of Wells Fargo’s wealth and the subsequent parent companies is a
consideration for punitive damages.” (Doc. 125, at 2).
The Court rejects plaintiff’s argument that Wells Fargo’s alleged control over
upper management’s performance-based bonuses makes evidence of defendant’s parent
companies admissible. First, plaintiff has provided the Court with no evidence to suggest
that any decision made by an adjuster or any other employee or agent of defendant was
motivated in any way by bonuses. Rather, plaintiff’s single citation to a portion of a
deposition shows that bonuses were based on overall company profitability and not on
the adjustment of individual claims. Second, the cases plaintiff cites in support of its
argument are easily distinguishable. Both Grange Mut. Ins. v. Trude, 151 S.W.3d 803,
815 (Ky. 2004), and Meier v. Travelers Home & Marine Ins. Co., 2016 WL 4447050
(W.D. Wash. Aug. 4, 2015), involved questions about whether parties could conduct
discovery of bonuses, not the admissibility of the identify of parent companies at trial.
On the other hand, it appears that some of the adjusters’ practices and document
retention requirements were governed by Wells Fargo Insurance, Inc.’s policies, as may
be reflected in documents that may be admissible. That these were policies imposed by
Wells Fargo, versus FFIC or RCIS, appears to have no relevance to any issue in dispute.
The Court is not persuaded, at least on the showing thus far made, that the “trial in this
matter will involve significant issues as to Wells Fargo’s involvement and role with
respect to the conduct that occurred in this case in both the breach of the contract and
bad faith conduct” as plaintiff so strongly alleges. (Doc. 125, at 4). Nor is the Court
persuaded, however, that the mere mention of Wells Fargo would cause defendant unfair
Finally, the Court rejects on the record before it that the parent companies are
relevant to the issue of punitive damages. Plaintiff’s reliance on Niver v. Travelers
Indem. Co., 430 F. Supp.2d 852 (N.D. Iowa 2006), is misplaced. In Niver, the Court
found the plaintiff produced evidence establishing a prima facie basis for piercing the
corporate veil of the parent corporation with evidence showing, among other things,
financial and managerial interrelationships between the defendant corporation and its
parent corporation. 430 F. Supp.2d at 870-71. Plaintiff has made no such showing here.
Rather, this case is much more like this Court’s decision in Williams v. Security National
Bank of Sioux City, Iowa, 358 F.Supp.2d 782, 787 (N.D. Iowa 2005). There, this Court
found the plaintiff was required to prove “exceptional circumstances” warranting piercing
the corporate veil, but had failed to satisfy the requirements for piercing the corporate
veil. Therefore, the Court excluded evidence of the defendant subsidiary’s corporate
relationship to its parent corporation and evidence of the financial condition of the parent
corporation that the plaintiff might have intended to use as a basis for awarding punitive
damages against the subsidiary. Id.
In sum, the Court finds that there has been no basis for plaintiff to reference or
introduce evidence of FFIC’s parent corporation Allianz, or RCIS’s current parent
corporation Zurich. Plaintiff may introduce evidence of Wells Fargo only to the extent
it is related to training, document retention policies, or the like governing the adjusters
at the time of their conduct in question. If defendant believes a limiting instruction is
appropriate, it may request the Court give one. Plaintiff may not introduce evidence of
Wells Fargo’s wealth, or make any argument that the jury should in any way consider
the relationship between defendant and Wells Fargo in determining any damage award in
this case. Accordingly, defendant’s motion in limine is granted in part, and denied in
Allocation of Punitive Damages Award to Civil Reparations Fund
Defendant seeks an order barring evidence “relating to the allocation of a punitive
damages award to the civil reparations fund.” (Doc. 106). Plaintiff does not resist this
motion (Doc. 126), and therefore it is granted.
Testimony of David Tritsch
Defendant seeks an order to exclude “certain of the anticipated testimony of
[plaintiff’s expert] David Tritsch.” (Doc. 107). Defendant believes Mr. Tritsch may
improperly attempt “to offer opinions about the ultimate issue in this case, define legal
duties, deliver legal interpretations, deliver opinions on matters outside the scope of his
expertise, make interpretations of evidence and testimony, and improperly and negatively
characterize documents and individuals herein.” (Doc. 107, at 1-2). Defendant argues
that Mr. Tritsch’s opinion contains improper conclusions as to intent and bad faith,
ultimate issues for the jury, legal interpretations, allegations of conflicts of interest and
intentional destruction of evidence, interpretations as to defendant’s employees’ motives
and attitudes, and improper characterizations and commentary. (Doc. 107, at 2-8).
Plaintiff resists defendant’s motion, asserting that Mr. Tritsch has 41 years of experience
in the industry and it qualifies him to offer these opinions. Plaintiff argues that Mr.
Tritsch’s opinions do not constitute legal conclusions, may embrace the ultimate issue
before the jury pursuant to Rule 704 of the Federal Rules of Evidence, and otherwise are
not outside the scope of proper opinion testimony. (Doc. 127).
As the Court previously noted with regard to Mr. Babcock, written expert reports
are hearsay and will not be admitted absent a showing of an exception to the hearsay rule.
Therefore, at the outset, the jury will not likely see Mr. Tritsch’s reports. The Court has
reviewed the reports and find them to contain a fair amount of speculation as to
defendant’s employees’ knowledge, motives, and intention, pejorative and inflammatory
language and references,4 and some legal conclusions. His reports certainly do not reflect
a neutral expert’s, dispassionate professional opinion. Be that as it may, Mr. Tritsch has
expertise in the area superior to that of the jurors and his opinions regarding whether
defendant acted properly in adjusting and processing plaintiff’s crop insurance claim may
be of assistance to the jury. The Court cannot find that Rule 702 should bar Mr. Tritsch’s
testimony. Rather, the proper way for handling this expert’s testimony is the same for
handling Mr. Brown’s testimony.
To the extent defendant believes Mr. Tristch’s
Plaintiff indicated it would not elicit these types of comments from Mr. Tritsch during his
testimony. (Doc. 127, at 16-17 & n.2).
testimony is improper, it may object. To the extent defendant believes Mr. Tritsch’s
testimony lacks a sufficient basis in fact or is outside his area of expertise, then it can
demonstrate that through vigorous cross-examination or the presentation of contrary
evidence. Daubert, 509 U.S. at 595–96.
Accordingly, the Court denies defendant’s motion in limine to exclude certain
anticipated testimony of David Tritsch.
For the reasons and as explained in detail set forth above, the Court grants in part,
denies in part, and holds in abeyance its ruling in part, regarding plaintiff’s motions in
limine (Docs. 93, 94, 95, 96, 97, and 98) and defendant’s motions in limine (Docs. 100,
101, 103, 104, 105, 106, 107, and 108).
IT IS SO ORDERED this 27th day of February, 2017.
Chief United States Magistrate Judge
Northern District of Iowa
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