Landrum v. Conseco Life Insurance Company et al
Filing
162
ORDER granting in part and denying in part Defendant's Motion 125 in Limine and granting in part and denying in part Plaintiff's 128 Motion in Limine. Signed by District Judge Halil S. Ozerden on 1/2/2014 (HM)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
PATRICIA K. LANDRUM
v.
PLAINTIFF
Civil Action No. 1:12cv5-HSO-RHW
CONSECO LIFE INSURANCE COMPANY
DEFENDANT
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
MOTION [125] IN LIMINE AND GRANTING IN PART AND DENYING IN
PART PLAINTIFF’S MOTION [128] IN LIMINE
BEFORE THE COURT are Defendant Conseco Life Insurance Company’s
Consolidated Motion [125] in Limine and Plaintiff Patricia K. Landrum’s
Consolidated Motion [128] in Limine. Ms. Landrum has filed a Response [136] to
Conseco’s Motion, and Conseco a Reply [142]. Conseco has filed a Response [133] to
Ms. Landrum’s Motion. After considering the pleadings on file, the record, and
relevant legal authorities, the Court finds that both Motions [125][128] in Limine
should be granted in part and denied in part as set forth herein.
I. BACKGROUND
Conseco seeks to exclude the following at trial:
1.
Any statement by Ms. Landrum that Conseco denied her claim for
Policy proceeds;
2.
Evidence relating to Ms. Landrum’s claims for extra-contractual,
bad faith, or punitive damages;
3.
Evidence relating to any alleged emotional distress damages
suffered by Ms. Landrum;
4.
Evidence relating to any party’s relative wealth or size;
5.
Bad acts of Conseco or other insurers;
6.
Evidence of discovery disputes between the parties; as well as
evidence of either party’s decision not to conduct certain discovery;
7.
Reserve information;
8.
“Golden Rule” arguments;
9.
Arguments asking jury to “send a message” or to act as “conscience
of community”;
10.
Testimony from Plaintiff’s proposed expert regarding
interpretation of the policy or calculations based on the policy
provisions;
11.
The Court’s September 18, 2012, Order denying Conseco’s cross
claim for interpleader as a basis for a finding of bad faith;
12.
Any reference to Ms. Landrum’s adoption or search for her adopted family
or related issues that may be used to garner sympathy that are irrelevant
to Ms. Landrum’s claims; and
13.
Any reference to Ms. Landrum’s daughter’s death.
Conseco’s Mot. [125] at pp.1-2.
Ms. Landrum seeks to exclude at trial “any testimony, evidence and/or
argument” regarding
1.
Marriages and/or divorces of Ms. Landrum other than her
marriage to and divorce from John L. Landrum, deceased;
2.
Any personal bankruptcy filed by Ms. Landrum;
3.
Any policies of insurance under which Ms. Landrum is or was a
beneficiary other than the Policy that is the subject of this
litigation;
4.
Any alleged “Specimen” policy of insurance that differs in any
respect from the Policy;
5.
The Mississippi Department of Insurance’s alleged approval of,
disapproval of, or the likelihood of the Mississippi Department of
2
Insurance approving a policy with terms such as those expressly
contained in the subject Policy;
6.
Any testimony, evidence and argument regarding any document,
testimony, or evidence that Conseco did not properly disclose or
produce;
7.
The amount of money that Ms. Landrum “would have accepted” or
“would accept” from Conseco in lieu of the contractual benefits
addressed in Ms. Landrum’s Amended Complaint and discovery
responses;
8.
Rates of interest that would or may have been available from any
bank, lending, or investment company during the time period from
when the Policy was purchased through trial;
9.
Parol evidence regarding interpretation of the Policy;
10.
Portions of Ms. Landrum’s deposition that were changed pursuant
to an errata sheet;
11.
Alleged reasons to deny Ms. Landrum’s claim, delay payment of
Ms. Landrum’s claim, and/or calculate payments and interest due
under Ms. Landrum’s claim that were not contemporaneously
advanced by Conseco as a basis for its claims decisions and/or that
were not disclosed in timely responses to Ms. Landrum’s discovery
requests;
12.
The content of Ms. Landrum’s Motion in Limine.
Pl.’s Mot. [128] at pp.1-3.
Ms. Landrum does not oppose Conseco’s Request Number 8 and concedes that
Conseco’s Request Number 10 is moot. These portions of Conseco’s Motion [125] in
Limine will be granted as unopposed. Conseco does not oppose Ms. Landrum’s
Requests 1, 2, 7, or 12, and these portions of Ms. Landrum’s Motion [128] in Limine
will also be granted as unopposed. The parties’ remaining Requests are addressed
below.
3
II. LAW AND ANALYSIS
A.
Conseco’s Requests
1.
Conseco’s Request No. 1: Any statement by Ms. Landrum that Conseco
denied her claim for Policy proceeds
Conseco seeks to exclude any statement by Ms. Landrum that Conseco denied
her claim for Policy proceeds. Def.’s Mot. [125] at p. 1. Conseco asserts that it
never denied Ms. Landrum’s claim and that Ms. Landrum should not be allowed to
testify that Conseco denied her claim. Def.’s Mem. [126] at pp. 1, 3.
Ms. Landrum testified in her deposition that a Conseco adjustor named
Shawn told her that her claim “had been denied . . . [b]ecause there was no
Settlement Agreement.” Dep. of Patricia Landrum [136-2] at p. 68. In a letter to
the Mississippi Insurance Department, Ms. Landrum wrote, “[t]he insurance
company says because we divorced and had no property settlement, I was not
entitled to benefits.” Id. Letter [136-4]. In this same letter, she stated that
Conseco is “wanting to put this in his estate.” Id.
Ms. Landrum responds that her testimony regarding what occurred during
claims handling, including her recollection that she was told her claim was denied,
is relevant, bears upon her right to attorneys’ fees and expenses, and “sheds light”
on why she filed this suit. Pl.’s Mem. [136] at pp. 5-8.1 Ms. Landrum submits that
Conseco may call the claims adjustor if it wishes to challenge her testimony that
1
Ms. Landrum’s argument regarding attorneys’ fees is moot in light of the
parties’ agreement that the Court will determine the attorneys’ fees owed to Ms.
Landrum.
4
she was told the claim was denied. Id. at p. 8.
Ms. Landrum’s recollection that she was told her claim was denied is
relevant and not more prejudicial than probative. Whether her recollection is
correct, whether she understands the legal distinction between claim denial and
claim delay, and whether her recollection is consistent with other evidence in this
case are separate matters that counsel may explore at trial. This portion of
Conseco’s Motion [125] in Limine will be denied.
2.
Conseco’s Request Number 2: Extra-Contractual, Bad Faith, or
Punitive Damages Evidence
Conseco seeks to exclude at trial statements and evidence regarding punitive
damages and extra-contractual damages. Def.’s Mem. [126] at p. 4. Conseco’s
request is granted to the extent that evidence relevant only to punitive damages
will be excluded during the initial phase of trial. The Court does not prejudge
whether a punitive damages stage will be necessary in this case. The remainder of
Conseco’s request is denied in light of the Court’s finding that Ms. Landrum’s claim
for extra-contractual compensatory damages will proceed to trial. Mem. Op. and
Order [134] at p. 26.
3.
Conseco’s Request Number 3: All References and Evidence Relating to
Emotional Distress Damages
Conseco seeks to exclude “[e]vidence relating to any alleged emotional
distress damages suffered by Plaintiff.” Def.’s Mem. [126] at p. 6. The Court has
already determined that Ms. Landrum will be allowed to present her case for
emotional distress damages at trial, and this portion of Conseco’s Motion [125] in
5
Limine is denied.
The remaining portion of Conseco’s request on the issue of emotional distress
is largely a recitation of the law on emotional distress, as stated in University of
Southern Mississippi v. Williams, 891 So. 2d 160 (Miss. 2004), coupled with a
sweeping request that “this Court should . . . prevent . . . Plaintiff from offering . . .
testimony [regarding her purported emotional distress] unless and until she offers
satisfactory proof that her alleged emotional distress was a foreseeable consequence
of Conseco Life’s conduct.” Id.
In Williams, the Mississippi Supreme Court clarified the burden for recovery
of mental anguish and emotional distress damages in breach of contract actions:
Plaintiffs may recover such damages without proof of a
physical manifestation. Furthermore, expert testimony
showing actual harm to prove mental injury is not always
required. However, the plaintiff must show (1) that mental
anguish was a foreseeable consequence of the particular
breach of contract, and (2) that he or she actually suffered
mental anguish. Such generalizations as “it made me feel
bad,” or “it upset me” are not sufficient. A plaintiff must
show specific suffering during a specific time frame. These
requirements are not different from the requirements to
establish physical pain and suffering.
Id. at 172-73 (internal citations omitted).
Williams addresses a plaintiff’s ultimate burden and was decided in a posttrial context. It is not a rigid mandate requiring a plaintiff to testify in a certain
order or manner. Williams instead emphasizes the nonimmutable nature of “the
plaintiff’s burden of establishing specific proof” and “establishing whether
6
emotional distress is foreseeable.” Id. at 173. Both depend on “the nature of the
incident.”
The burden of establishing foreseeability in cases such as this one has been
addressed by the Mississippi Supreme Court in Universal Life Ins. Co. v. Veasley,
610 So. 2d 290, 295 (Miss. 1992). Veasley provides that “it is entirely foreseeable by
an insurer that failure to pay a valid claim through the negligence of its employees
should cause some adverse result to the one entitled to payment.” Id. The Court
does not suggest that Ms. Landrum is automatically entitled to recover emotional
distress damages; “clearly testimony or other evidence in support of such damages
is required.” Simpson v. Economy Premier Assur. Co., 1:05cv35-M-D, 2006 WL
2590620, *2 (N.D. Miss. Sept. 8, 2006). However, the burden of establishing
foreseeability where an insurance claim was denied negligently or unreasonably
appears “particularly low.” Id.
Williams furthermore does not require that generalized statements regarding
emotional distress be excluded or stricken. It instead provides that “a plaintiff
must provide more than general declarations of emotional distress.” Williams, 891
So. 2d at 173 (emphasis added). To the extent Conseco is requesting a pretrial
ruling dictating the order and manner in which Ms. Landrum must testify
regarding her purported emotional distress, this request is denied. Motions in
limine should not be used as sweeping means of testing issues of law. 75 Am. Jur.
Trial § 44. Except as to certain types of evidence which are generally recognized as
7
inadmissible, a motion in limine must be sufficiently specific with respect to the
matters or evidence to be excluded and should not request dispositive pretrial
rulings on entire issues or claims. Id. at § 50.
Conseco asserts that Ms. Landrum “cannot submit evidence of emotional
distress prior to [October 5, 2011],” the date she learned about the Policy’s
continued existence. Def.’s Mem. [126] at p. 6. To the extent that this statement
can be interpreted as a request for exclusion, it is denied because it seeks a
dispositive determination on a substantive issue of law.
4.
Conseco’s Request Number 4: Evidence Regarding Any Party’s Wealth
or Financial Condition
Conseco seeks to exclude “[e]vidence related to any party’s relative wealth or
size, including but not limited to Conseco Life’s financial condition.” Def.’s Mem.
[126] at p. 6. “Plaintiff stipulates that Plaintiff will not seek to submit evidence of
Conseco’s net worth to the Jury during the initial phase of trial . . . .” Pl.’s Mem.
[136] at p. 10. Conseco’s request is granted to the extent that “[e]vidence related to
any party’s relative wealth or size, including but not limited to Conseco Life’s
financial condition” will be excluded during the initial trial phase.
5.
Conseco’s Request Number 5: Bad Acts or Practices of Conseco and
Other Insurers
Conseco “requests that the Court prohibit any reference to the fact that
Conseco Life or any related corporation is or has been involved in other litigation
regarding its claims or recertification process or other practices challenged by
Plaintiff here that have been the subject of unrelated litigation or investigation.”
8
Def.’s Mem. [126] at p. 7.
Plaintiff stipulates that she will not attempt to offer any
evidence of bad acts of Conseco or other insurers that are
unrelated to the controversy in this litigation during trial.
As to “practices” of other insurers, the facts are undisputed
that the subject policy of insurance was issued by Lamar
Life. To the extent evidence of Lamar’s practices has been
timely produced or disclosed in discovery, such evidence is
clearly fair game in this case.
Pl.’s Mem. [136] at p. 10.
Though Conseco generally references Federal Rules of Evidence 401, 403, and
404, neither party has provided the Court with authority specific to the issue of
whether evidence of other claims, litigation, and insurance practices are admissible
in a case such as this one, and if they are admissible, when and for what purpose.
Though the Court is inclined toward the view that such evidence would not be
admissible during the compensatory damages phase of trial, it has reached no firm
conclusion in this regard because it has been presented with no specific evidence or
material to be ruled upon, it is handicapped by an absence of context, and the
parties have not briefed their positions.
The Court reserves ruling and will entertain contemporaneous objections
regarding specific evidence at trial. Ms. Landrum is directed not to broach the
subject of other claims, litigation, recertification processes, or “practices” that she
perceives to be “related” or “fair game” until first seeking permission from the
Court, outside the hearing of the jury. The parties should be prepared to present
more than general references to the Rules of Evidence in support of their positions.
9
Conseco’s Request will be denied without prejudice to its right to raise specific
objections at trial.
6.
Conseco’s Request No. 6: Evidence Relating to Discovery Disputes
Between the Parties
Conseco seeks to exclude “[e]vidence of any discovery disputes between the
parties.” Def.’s Mem. [126] at p. 8. Conseco submits that “[e]vidence that is related
in any way to discovery disputes between the parties, or any party’s decision to
conduct or not conduct any particular discovery, should be excluded . . . .” Id.
Conseco references a Motion to Compel [70] filed by Ms. Landrum, a Motion to
Strike [107] filed by Ms. Landrum, a Motion [95] for Review of the Magistrate’s
Order filed by Ms. Landrum, and two of the Court’s Orders [85, 118] ruling on these
Motions. Conseco cites three opinions in support of its position, two from this Court
in which the parties stipulated that discovery disputes would not be referenced at
trial,2 and a third from a Florida federal district court in a case unlike this one
where the court excluded reference to a specifically-identified purported discovery
violation.3
Ms. Landrum contends that “Conseco’s discovery misconduct in this case is
part and parcel of its unjustified delay in payment of contractually owed benefits
2
Hankins v. Ford Motor Co., No. 3:08cv639-CWR-FKB, 2012 WL 174793, *11
(S.D. Miss. Jan. 20, 2012); Riley v. Ford Motor Co., No. 2:09cv148-KS-MTP, 2011
WL 3273592, *5 (S.D. Miss. July 29, 2011).
3
Avalon Carriage Serv., Inc. v. Gamsey, No. 3:04cv1126-J-32MCR, 2007 WL
2696797, *1-2 (M.D. Fla. Sept. 12, 2007).
10
and interest, and its reckless disregard for Plaintiff’s rights.” Pl.’s Resp. [136] at p.
10.4 Ms. Landrum does not reveal any specifics as to what she contends constituted
Conseco’s discovery misconduct. While Ms. Landrum accused Conseco of numerous
improprieties during discovery, her positions on these disputes were largely
unsuccessful for various reasons. Evidence of what occurred during discovery can
be admissible in a case such as this one because “[a]n insurance carrier’s duty to
promptly pay a legitimate claim does not end because a lawsuit has been filed
against it for nonpayment.” Gregory v. Continental Ins. Co., 575 So. 2d 534, 541
(Miss. 1990). The relevance in this case, however, appears unlikely in light of the
Court’s previous rulings. The Court will nevertheless deny without prejudice
Conseco’s request for exclusion of discovery-related evidence due to a lack of context
and specificity. The Court will rule upon contemporaneous objections as to specific
evidence as they arise at trial.
7.
Conseco’s Request Number 7: Evidence of Reserves
Conseco seeks to exclude reserve information from trial on the basis that it is
not relevant and alternatively, its probative value is outweighed by the danger of
unfair prejudice, confusion of the issues, misleading the jury, and wasting time.
Def.’s Mem. [126] at pp. 8-9. Conseco cites: (1) an Illinois federal district court
4
Ms. Landrum’s argument that “Conseco’s discovery conduct also helps
explain Ms. Landrum’s entitlement to recover attorneys’ fees for having to pursue
and prosecute this litigation in order to enforce her contractual rights” is moot in
light of the parties’ agreement that the Court will decide what attorneys’ fees are
owed to Ms. Landrum.
11
decision where the court excluded reserve information, finding it irrelevant to a
first-party insurance bad faith claim;5 (2) a Louisiana federal district court decision
in a bad faith case where the court excluded the specific amount of the reserve as
overly prejudicial and confusing to the jury but did not definitively exclude the
subject of reserves from trial altogether;6 and (3) two Pennsylvania federal district
court decisions addressing the discoverability of reserve information, one denying
discovery and one allowing it as “germane” to the plaintiff’s bad faith claim.7
Plaintiff responds that “[t]his Court has expressly held that reserve
information may be relevant in the context of a bad faith action,” citing Jefferson
Davis Co. Sch. Dist. v. RSUI Indemn. Co., No. 2:08-cv-190-KS-MTP, 2009 WL
1658478, *3 (S.D. Miss. June 11, 2009). Pl.’s Mem. [136] at p. 11. In Jefferson, a
United States Magistrate Judge of this Court allowed discovery on reserve
information in a bad faith case but made no determination regarding whether such
information was admissible at trial.
Conseco’s Request to exclude reserve information is granted as to the first
phase of trial because it has no relevance to the issues to be decided in phase one.
5
Spearman Indus., Inc. v. St. Paul Fire and Marine Ins. Co., 128 F. Supp. 2d
1148, 1154 (N.D. Ill. 2001).
6
Shelter Mut. Ins. Co. v. Culbertson’s Ltd., Inc., Nos. Civ. A. 97-1609, 1969,
1999 WL 539520, *4 (E.D. La. July 23, 1999).
7
Maiden Creek T.V. Appliance, Inc. v. Gen. Cas. Ins. Co., No. Civ. A. 05-667,
2005 WL 1712304, *1 (E.D. Pa. July 21, 2005); Robinson v. Hartford Ins. Co., No.
Civ. A. 03-5618, 2004 WL 1090991, *1 (E.D. Pa. May 11, 2004).
12
The Court will reserve any decision on the issue of the admissibility of reserve
information in any second phase on punitive damages.
8.
Conseco’s Request Number 9: “Send a Message” or “Conscience of the
Community” Arguments
Conseco seeks to exclude “references in opening statement, closing argument,
or at any other point of the trial, that jury members should ‘send a message’ to
Conseco Life, or act as the ‘conscience of the community,’” on the basis that such
instructions urge the jury to render its verdict based upon passion and prejudice
and not the facts and evidence presented at trial. Def.’s Mem. [126] at p. 10. Ms.
Landrum submits that because two Mississippi Supreme Court decisions
addressing insurance coverage refer to a civil jury as “the conscience of the
community,” “[t]here is simply no basis for preventing Counsel for Plaintiff from
telling the Jury in this cause that it is exactly what the Mississippi Supreme Court
says it is – the ‘conscious [sic] of the community.’” Pl.’s Mem. [136] at p. 12.
Contrary to Ms. Landrum’s position, the Mississippi Supreme Court has, in
an insurance coverage case, rejected the use of “send a message” arguments during
trial. United Servs. Auto. Assoc. v. Lisanby, 47 So. 3d 1172, 1184-85 (Miss. 2010).
The Fifth Circuit has also “condemned ‘community conscience’ arguments as
unfairly prejudicial.” Reese v. Mercury Marine Div. of Brunswick Corp., 793 F.2d
1416, 1429 (5th Cir. 1986). This portion of Conseco’s Motion [125] in Limine is
granted.
13
9.
Conseco’s Request No. 11: Reference to the Court’s September 18,
2012, Order Denying Conseco’s Cross Claim for Interpleader
Conseco seeks to exclude “[t]he Court’s September 18, 2012, Order denying
Conseco’s cross claim for interpleader as a basis for a finding of bad faith.” Def.’s
Mem. [126] at pp. 11-12. “An insurance carrier’s duty to promptly pay a legitimate
claim does not end because a lawsuit has been filed against it for nonpayment.”
Gregory v. Continental Ins. Co., 575 So. 2d 534, 541 (Miss. 1990). Conseco’s decision
to pursue interpleader in this case is relevant to the remaining issues in dispute
and not unfairly prejudicial. This portion of Conseco’s Motion [125] in Limine is
denied.
10.
Conseco’s Request No. 12: Any Evidence Designed Only to Garner
Sympathy for Plaintiff
Conseco requests the exclusion of “[a]ny evidence designed only to garner
sympathy for Plaintiff . . . .” Def.’s Mem. [126] at p. 12. The only example of such
purported evidence Conseco recites is testimony from Ms. Landrum regarding her
adoption or search for her biological family. Id. Ms. Landrum responds that her
deposition testimony regarding her adoption and search for her biological family
was prompted only by Conseco questioning her as to why she “came to Eatonton[,
Georgia],” and Conseco’s questioning on this topic spans more than two pages. Pl.’s
Resp. [136] at p. 12.
Conseco’s request for a categorical exclusion of “[a]ny evidence designed only
to garner sympathy for Plaintiff” will be denied without prejudice as vague,
nonspecific, and lacking in context. The fact that Conseco questioned Ms. Landrum
14
regarding her adoption and search for her family during her deposition will not be
excluded at this time.
11.
Conseco’s Request No. 13: Any Evidence Relating to the Death of
Plaintiff’s Daughter
Conseco seeks to exclude testimony by Ms. Landrum regarding the death of
her daughter as irrelevant and, alternatively, unfairly prejudicial. Def.’s Mem.
[126] at p. 13. Ms. Landrum responds that Conseco’s adjustor Shawn asked her
about her daughter’s suicide and that such evidence is germane to the issue of how
Conseco handled her claim and what led to the filing of this lawsuit. Pl.’s Resp.
[136] at p. 13. Evidence that Conseco questioned Ms. Landrum about the suicide of
her daughter during the claims handling process appears relevant to the remaining
issues in this case and is not unfairly prejudicial. This portion of Conseco’s Motion
[125] in Limine is denied.
B.
Ms. Landrum’s Requests
1.
Ms. Landrum’s Request No. 3: Any Other Insurance Policies to Which
Plaintiff Was a Beneficiary
Ms. Landrum requests exclusion of testimony, evidence, and argument
“regarding any policies of insurance under which Plaintiff is or was a beneficiary
other than the Policy of Insurance that is the subject of this litigation” as irrelevant
and unfairly prejudicial. Pl.’s Mem. [129] at p. 6. Conseco responds that “[s]uch
evidence is relevant to [Ms. Landrum’s] understanding of insurance policies, claims
to insurance policies, and policy proceeds.” Def.’s Resp. [133] at p. 1. This Request
appears to be moot in light of the Court’s findings in its Memorandum Opinion and
15
Order [134], but due to a lack of context and specificity, the request will be denied
without prejudice. The parties are directed not to broach the subject of other
insurance policies to which Ms. Landrum is or was a beneficiary until first seeking
permission from the Court, outside the hearing of the jury.
2.
Ms. Landrum’s Request No. 4: Any “Specimen” Policy Different from
the Subject Policy
Ms. Landrum seeks to exclude any testimony, evidence, or argument
regarding a “Specimen” policy of insurance. Pl.’s Mem. [129] at p. 6. The Specimen
Policy [102-4] is no longer relevant in light of the Court’s resolution of the issue
regarding the Policy’s death benefit multipliers. Mem. Op. and Order [134] at pp. 710. This portion is of Ms. Landrum’s Motion [128] in Limine is granted.
3.
Ms. Landrum’s Request No. 5: Evidence of the Likelihood of the
Mississippi Department of Insurance Approval or Disapproval of the
Terms of the Policy
Ms. Landrum seeks to exclude any testimony, evidence, or argument
regarding the Mississippi Department of Insurance approval, disapproval, or
likelihood of approving or disapproving “a policy with terms such as those expressly
contained in the subject Policy . . . .” Pl.’s Mem. [129] at p. 7. Such evidence is not
relevant in light of the Court’s findings in its Memorandum Opinion and Order
[134], and this portion of Ms. Landrum’s Motion [128] in Limine is granted.
4.
Ms. Landrum’s Request No. 6: Evidence Not Timely Disclosed,
Produced in Response to Discovery Requests, or Set Forth in a Timely
Designation of Expert Witnesses
Ms. Landrum seeks to exclude “any testimony, evidence and/or argument
16
regarding any document, testimony or evidence” that Conseco did not properly
disclose, produce, or designate during discovery. Pl.’s Mem. [129] at pp. 7-8. Ms.
Landrum specifically requests exclusion of “the Affidavit of David Rikkers [102-1],
Internal Revenue Code § 7702, alleged ‘industry standards,’ Policy Form 2F011010/89, other universal life insurance policies, alleged excerpt from 1984 Senate
Committee Report, News Articles not printed until 1984, the subject matter thereof
and each of the improper exhibits to Defendant’s Motion for Summary Judgment . .
.” Id. at p. 8.
“The purpose of motions in limine is not to re-iterate matters which are set
forth elsewhere in the Rules of Civil Procedure or Rules of Evidence, but, rather, to
identify specific issues which are likely to arise at trial, and which, due to their
complexity or potentially prejudicial nature, are best addressed in the context of a
motion in limine.” Maggette v. BL Dev. Corp., Nos. 2:07cv181-M-A, 2:07cv182-M-A,
2011 WL 2134578, *4 (N.D. Miss. May 27, 2011)(emphasis in original). Ms.
Landrum’s request for a universal pretrial ruling excluding all evidence not
properly disclosed or designated is denied.
The Affidavit of David Rikkers [102-1], 26 U.S.C. § 7702 [102-3], Policy Form
2F0110-10/89 [102-4], and the 1984 Senate Committee Report [102-14] are
irrelevant in light of the Court’s findings in its Memorandum Opinion and Order
[134]. Ms. Landrum’s request to exclude these items from trial is granted. It is
unclear to the Court what Ms. Landrum is referring to as “alleged ‘industry
standards,’” “other universal life insurance policies,” “News Articles not printed
17
until 1984," and “improper exhibits to Defendant’s Motion for Summary Judgment.”
Pl.’s Mem. [129] at p. 8. Her request to exclude such items is denied as vague.
5.
Ms. Landrum’s Request No. 8: Available Rates of Interest
Ms. Landrum seeks to exclude “any testimony, evidence and/or argument
regarding rate(s) of interest that would or may have been available from any bank,
lending and/or investment company during the time period from when the subject
Policy was purchased through the trial of this matter . . . .” Pl.’s Mem. [129] at p. 9.
Such evidence is irrelevant in light of the Court’s findings in its Memorandum
Opinion and Order [134], and this portion of Ms. Landrum’s Motion [128] in Limine
is granted.
6.
Ms. Landrum’s Request No. 9: Parol Evidence
Ms. Landrum seeks to exclude “any testimony, evidence and/or argument
regarding parole [sic] evidence regarding interpretation of the subject insurance
Policy separate and apart from the express language of the subject contract of
insurance.” Pl.’s Mem. [129] at p. 10. The issue of parol evidence is moot in light of
the Court’s findings in its Memorandum Opinion and Order [134], and this portion
of Ms. Landrum’s Motion [128] in Limine is granted.
7.
Ms. Landrum’s Request No. 10: Reasons for Conseco’s Claims Not
Contemporaneously Advanced and/or Disclosed in Discovery
Ms. Landrum requests exclusion of 26 U.S.C. § 7702 [102-3] and Policy Form
2F0110-10/89 [102-4]. Pl.’s Mem. [129] at pp. 10-14. As previously stated, these
items will be excluded as irrelevant. Ms. Landrum again requests exclusion of
18
“alleged ‘industry standards’” and “other universal life insurance policies” with no
specificity. As previously stated, this request is denied as vague.
8.
Ms. Landrum’s Request No. 11: Testimony Corrected by Errata Sheet
Ms. Landrum seeks to exclude from trial the fact that she changed portions of
her deposition by errata sheet. Pl.’s Mem. [129] at p. 15. Ms. Landrum submits
that “[t]o the extent Plaintiff is not available to testify at trial, Defendant should be
excluded from offering the original deposition testimony (either in writing or by
video, and especially by video), because the probative valued [sic] of such evidence,
even if relevant, is outweighed by the likelihood of prejudice and/or confusion of the
Jury.” Id. Conseco responds that it “is entitled to inquire as to why Plaintiff
amended such testimony through the filing of an errata sheet. Furthermore, these
statements bear to Plaintiff’s credibility.” Def.’s Resp. [133] at p. 6.
Ms. Landrum made significant changes to her deposition testimony by errata
sheet, and the fact that she did so may be admissible at trial to the extent it bears
upon her credibility and is not unfairly prejudicial. Walker v. George Koch Sons,
Inc., No. 2:07cv274-KS-MTP, 610 F. Supp. 2d 551, 558 (S.D. Miss. Mar. 27, 2009);
Bridges v. Enter. Prods. Co., Inc., No. 3:05cv786-WHB-LRA, 2007 WL 571074, *8
(S.D. Miss. Feb. 20, 2007). This portion of Ms. Landrum’s Motion [128] in Limine is
denied.
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III. CONCLUSION
Conseco’s Consolidated Motion [125] in Limine and Ms. Landrum’s
Consolidated Motion [128] in Limine should both be granted in part and denied in
part as stated within. Counsel are instructed to inform their witnesses of the
Court’s rulings and their obligations to abide by the limitations set forth in this
Order.
IT IS, THEREFORE, ORDERED AND ADJUDGED that, Defendant
Conseco Life Insurance Company’s Motion [125] in Limine is GRANTED IN PART
AND DENIED IN PART as set forth herein.
IT IS, FURTHER, ORDERED AND ADJUDGED that, Plaintiff Patricia
K. Landrum’s Motion [128] in Limine is GRANTED IN PART AND DENIED IN
PART as set forth herein.
SO ORDERED AND ADJUDGED, this the 2nd day of January, 2014.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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