Hayes v. Metropolitan Property & Casualty Insurance Company

Filing 102

MEMORANDUM AND ORDER - that defendant's motion in limine to exclude the expert testimony of Mark Malloy 91 is denied without prejudice. Defendant will be permitted to renew its motion at trial. Ordered by Senior Judge Lyle E. Strom. (KLF)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
ERIC D. HAYES,

)
)
Plaintiff,
)
)
v.
)
)
METROPOLITAN PROPERTY &
)
CASUALTY INSURANCE COMPANY,
)
)
Defendant.
)
______________________________)

8:14CV339

MEMORANDUM AND ORDER

This matter is before the Court on the defendant,
Metropolitan Property & Casualty Insurance Company’s (“Met” or
“defendant”) motion in limine (Filing No. 91).

Met seeks to

exclude “from trial the proffered expert opinions and testimony
of Mark Malloy . . . as inadmissible under Fed. R. Evid. 702 and
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and its
progeny.”
parties.

(Id. at 1).

The matter has been fully briefed by the

See Filing Nos. 92, 97, and 99.

After review of the

motion, the parties’ briefs, and the applicable law, the Court
finds as follows.
BACKGROUND
On October 17, 2014, the plaintiff, Eric D. Hayes
(“plaintiff” or “Hayes”), filed a complaint in the District Court
of Sarpy County, Nebraska, alleging breach of contract and bad
faith denial/investigation (Filing No. 1, exhibit A).

On October

24, 2014, the action was removed from state court under 28 U.S.C.
§§ 1441 and 1446 (Filing No. 1).

On December 24, 2014, plaintiff

filed an amended complaint (Filing No. 15).

The plaintiff’s

claims arise out of a homeowners insurance policy which was
issued to the plaintiff by the defendant.

On January 24, 2013,

the plaintiff’s residence, located at 480 South 6th Street,
Springfield, Nebraska, was destroyed by a fire (Id. at ¶ 6).
Plaintiff alleges the “fire was clearly a deliberate act, i.e.,
arson.”

(Id.)

The plaintiff’s residence was insured under the

Met homeowner’s policy at the time of the fire (Id. at ¶ 7).
On March 29, 2013, Met advised the plaintiff that it
would investigate the plaintiff’s claim arising out of the fire
(Id. at ¶ 11).

Between March 29, 2013, until approximately April

17, 2014, the plaintiff claims that he complied with the
defendant’s investigation.
25.

See Filing No. 23 at 2, Filing No.

On August 5, 2014, the defendant sent a denial letter to the

plaintiff, cancelling the policy and enclosing a check for all
premiums paid with interest (Filing No. 15 at ¶ 67).

The

defendant also advised the plaintiff that a check would be
delivered to Springfield State Bank for payment of the balance
due on the mortgage (Id. at ¶ 68).
On February 20, 2015, the Court granted in part, and
denied in part, defendant’s motion to dismiss (Filing No. 27).
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Applying “the statute and Chapter 44 of the Nebraska Revised
Statutes as a whole,” the Court concluded that plaintiff’s breach
of contract claim was time barred under the twelve-month
limitation period (Id. at 6-7).

However, the Court found the

twelve-month statute of limitations inapplicable to plaintiff’s
bad faith tort claim (Id. at 7).

Thus, the Court granted

defendant’s motion to dismiss with respect to plaintiff’s breach
of contract claim but denied the motion with respect to
plaintiff’s bad faith claim (Id.)
On March 2, 2015, plaintiff filed a notice of an appeal
(Filing No. 28), a motion to stay the proceedings pending appeal
(Filing No. 29), and a motion to extend time to file his
interlocutory appeal (Filing No. 30).

The following day, on

March 3, 2015, the Court granted plaintiff’s motion to stay the
proceedings pending his interlocutory appeal but denied
plaintiff’s motion to extend time in which to file his appeal
(Filing No. 31).

On April 21, 2015, the United States Court of

Appeals for the Eighth Circuit dismissed plaintiff’s appeal for
lack of jurisdiction (Filing No. 44).

Two days later, on April

23, 3015, defendant filed a motion to vacate the Court’s stay
(Filing No. 45).

The Court granted defendant’s motion to vacate

the stay the following day (Filing 46).

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Defendant filed its answer on April 27, 2015 (Filing
No. 47).

On May 15, 2015, defendant filed a motion for judgment

on the pleadings (Filing No. 49), and plaintiff filed a motion to
stay the proceedings pending a request for permission to appeal
(Filing No. 51).

Plaintiff’s second motion to stay alleged that

the Eighth Circuit’s dismissal for lack of jurisdiction “was
based upon the [p]laintiff appealing the [February 20, 2015]
Memorandum and Order without any specific requisite finding [from
the Court] that the matter could be appealed.”
1).

(Filing No. 52 at

The plaintiff thus sought this Court’s “permission to appeal

to the Eighth Circuit Court of Appeals or, in the alternative,
for the Court to amend its [February 20, 2015] Memorandum and
Order . . . to include the required permission or statement
allowing appeal . . . .”

(Id. at 2).

On July 2, 2015, the Court denied both plaintiff’s
motion to stay and plaintiff’s motion for permission to appeal
or, in the alternative, for entry of an amended order granting
permission to appeal (Filing No. 56).

The Court specifically

noted that “the Eighth Circuit notified the plaintiff on two
occasions that the plaintiff needed to request permission to
appeal from the district court . . . plaintiff failed to file a
request for permission to appeal.

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As a result, the Eighth

Circuit dismissed the plaintiff’s appeal for lack of
jurisdiction.”

(Id. at 2) (internal cites omitted).

On July 13, 2015, the Court denied defendant’s motion
for judgment on the pleadings (Filing No. 57).

On October 27,

2016, defendant filed the instant motion seeking an order to
exclude plaintiff’s expert’s opinions and testimony under Fed. R.
Evid. 702 and Daubert (Filing No. 91).
DISCUSSION
The Court’s Third Amended Final Progression Order,
issued on October 11, 2016, like each of the previous progression
orders, provides for a non-jury trial (Filing No. 90).
Therefore, the Court finds that defendant’s motion in limine
(Daubert) (Filing No. 91) should be denied without prejudice to
reassertion at trial.
“The district court's ‘gatekeeping
function’ under Daubert ensures
that expert evidence ‘submitted to
the jury’ is sufficiently relevant
and reliable, Bonner v. ISP
Technologies, Inc., 259 F.3d 924,
929 (8th Cir. 2001) (emphasis
added), but ‘[t]here is less need
for the gatekeeper to keep the gate
when the gatekeeper is keeping the
gate only for himself,’ United
States v. Brown, 415 F.3d 1257,
1269 (11th Cir. 2005). Similar
reasons support less stringent
application of Daubert in bench
trials. See Charles Alan Wright,
Victor James Gold, 29 Fed. Prac.
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& Proc. Evid. § 6266, n.90.2
(2010), and cases cited. The
‘usual concerns of the [Daubert]
rule -- keeping unreliable expert
testimony from the jury -- are not
present in such a setting.’
Metavante Corp. v. Emigrant Sav.
Bank, 619 F.3d 748, 760 (7th Cir.
2010).”
City of Lincoln, Neb. v. Windstream Nebraska, Inc., No.
4:10CV3030, 2011 WL 7145632, at *1 (D. Neb. Aug. 23, 2011)
(quoting In re Zurn Pex Plumbing Products Liability Litigation
644 F.3d 604, 613 (8th Cir.2011)).

See also Penske Truck Leasing

Co., L.P. v. Rion, LLC, No. 8:07CV294, 2008 WL 4540178, at *2 (D.
Neb. Oct. 7, 2008); S.E.C. v. Guenthner, 395 F. Supp. 2d 835, 843
n.3 (D. Neb. 2005).

Therefore, defendant’s motion will be denied

without prejudice at this time.

Accordingly,

IT IS ORDERED that defendant’s motion in limine to
exclude the expert testimony of Mark Malloy is denied without
prejudice.

Defendant will be permitted to renew its motion at

trial.
DATED this 16th day of December, 2016.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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